Burkett v. Houslanger & Associates, PLLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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EDUARDO BURKETT, et al.,

ORDER

Plaintiffs, 19-cv-2285(EK)(JO)

-against-

HOUSLANGER & ASSOCIATES, PLLC, et al.,

Defendants.

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ERIC R. KOMITEE, United States District Judge:

Before the Court is Judge Orenstein’s comprehensive

Report and Recommendation (R&R) on Plaintiffs’ motion for

attorney fees. For the reasons set forth below, the R&R is

adopted in part and modified in part.

I. Background

Plaintiffs Eduardo Burkett, Guillaume Foss, and

Virginia Ortiz commenced this action in 2019, individually and

on behalf of a putative class. They brought claims against

Defendants — a law firm specializing in debt collection and two

of the law firm’s attorneys — under the Fair Debt Collection

Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA), New York

General Business Law § 349, and New York Judiciary Law § 487.

On June 29, 2019, Defendants entered offers of judgment pursuant

to Rule 68 of $10,000 for each Plaintiff,1 plus “reasonable

attorneys’ fees and costs incurred up through the date of this

offer.” ECF Nos. 20-22; Fed. R. Civ. P. 68. Each Plaintiff

accepted their offer. The same day the offers were filed,

Plaintiffs sought leave to file an Amended Complaint adding

Lakesha Kingdom as a new Plaintiff. ECF No. 23. Judge DeArcy

Hall granted Plaintiffs leave to amend over Defendants’

objection, and judgment was entered in favor of Plaintiffs

Burkett, Foss and Ortiz on October 10, 2019. ECF No. 33.

Defendants made another offer of judgment to Plaintiff

Kingdom, again for $10,000 plus “reasonable attorneys’ fees and

costs incurred up through the date of the offer.” ECF No. 37.

Kingdom accepted, id., and judgment was entered on October 28,

2019. ECF No. 39. As before, Plaintiff sought leave to amend

the complaint to add a new named plaintiff and maintain the

possibility of pursuing a class action, ECF No. 38; but because

judgment had already been entered as to the last named plaintiff

at that point, the request to amend was denied. See Order dated

November 26, 2019.2

1 The statutory damages available under the FDCPA are capped at $1,000.

See 15 U.S.C. § 1692(k)(a)(2)(A); see also Plaintiffs’ Memorandum of Law in

Support of Motion for Attorneys’ Fees at 6, ECF No. 42 (Pl. Br.).

2 After the request to amend the complaint was denied, Plaintiff’s

counsel filed a similar complaint on behalf of four new named Plaintiffs and

a putative class, indicating that the new case was related to this one. See

Plaintiffs Burkett, Foss, Ortiz, and Kingdom filed a

motion for attorneys’ fees and costs on November 7, 2019. ECF

No. 41. They sought $45,280 plus such other relief as the court

deemed proper. Id.3 In his Report and Recommendation dated July

23, 2020, Judge Orenstein recommended that the Court make

certain reductions in the attorneys’ hourly rates and

compensable time, resulting in a total award of $30,535.72. See

R&R at 10, ECF No. 51. No objections to the R&R were filed.

II. Legal Standards

A district court reviewing a magistrate judge’s

recommended ruling “may accept, reject, or modify, in whole or

in part, the findings or recommendations made by the magistrate

judge.” 28 U.S.C. § 636(b)(1)(C). The Court may adopt those

portions of the recommended ruling to which no objections have

been made, provided no clear error appears from the face of the

record. Bassett v. Elec. Arts, Inc., 93 F. Supp. 3d 95, 100

(E.D.N.Y. 2015) (citing, inter alia, 28 U.S.C. § 636(b)(1)(C))).

While the Court is not required to review findings de novo when

no objections are filed, 28 U.S.C. § 636 “does not preclude

further review by the district judge, sua sponte or at the

Dupres et al. Houslanger & Associates, PLLC et al, 19-CV-6691. That case

remains pending.

3 This case was transferred to the undersigned on March 2, 2020.

request of a party, under a de novo or any other standard.”

Thomas v. Arn, 474 U.S. 140, 154 (1985).

III. Discussion

The R&R persuasively demonstrates that the requested

fees in this case are significantly inflated — between the

hourly rates charged and compensable hours worked — when

accounting for standard practices in FDCPA litigation and the

complexity of this action. Under the FDCPA, plaintiffs may

recover “the costs of the action, together with a reasonable

attorney’s fee as determined by the court.” 15 U.S.C.

§ 1692(k)(a)(3). The task of determining the amount of the fee

award is committed to the district court’s discretion, as Judge

Orenstein noted. Savino v. Computer Credit, Inc., 164 F.3d 81,

87 (2d Cir. 1998) (citing Pipiles v. Credit Bureau of Lockport,

Inc., 886 F.2d 22, 28 (2d Cir. 1989); Emanuel v. Am. Credit

Exch., 870 F.2d 805, 809 (2d Cir. 1989)). Judges should “use

their experience with the case, as well as their experience with

the practice of law, to assess the reasonableness of the hours

spent and rates charged in a given case.” Fox Indus., Inc. v.

Gurovich, No. 03-CV-5166, 2005 WL 2305002, at *2 (E.D.N.Y. Sept.

21, 2005) (quoting Clarke v. Frank, 960 F.2d 1146, 1153 (2d

Cir.1992)). In determining appropriate attorneys’ fees, courts

in this circuit apply the “lodestar” method, which multiples a

reasonable hourly rate and a reasonable number of hours expended

on the case. Millea v. Metro-North R.R. Co., 658 F.3d 154, 166

(2d Cir. 2011).

A. Hourly Rates

A reasonable hourly rate is the rate that “a

reasonable, paying client would be willing to pay.” Arbor Hill

Concerned Citizens Neighborhood Ass’n v. Cty. of Albany & Albany

Cty. Bd. of Elections, 522 F.3d 182, 184 (2d Cir. 2008). To

make this determination, the Second Circuit has instructed

district courts to consider, among other things, twelve factors

set forth in Johnson v. Ga Highway Express, Inc., 488 F.2d 714

(5th Cir. 1974), abrogated on other grounds by Blanchard v.

Bergeron, 489 U.S. 87, 92–93 (1989).4 See Arbor Hill, 522 F.3d

at 190.

Plaintiffs’ counsel, all of whom work for the New York

Legal Assistance Group (NYLAG), claim the following hourly

rates: $450 for Danielle Tarantolo, a partner-level attorney

and the Co-Director of NYLAG’s Special Litigation Unit; $250 for

Jessica Ranucci, an associate-level attorney; and $100 for Diana

4 The twelve Johnson factors are: (1) the time and labor required; (2)

the novelty and difficulty of the questions; (3) the level of skill required

to perform the legal service properly; (4) the preclusion of employment by

the attorney due to acceptance of the case; (5) the attorney's customary

hourly rate; (6) whether the fee is fixed or contingent; (7) the time

limitations imposed by the client or the circumstances; (8) the amount

involved in the case and the results obtained; (9) the experience,

reputation, and ability of the attorneys; (10) the “undesirability” of the

case; (11) the nature and length of the professional relationship with the

client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19.

Li, a student law clerk. See R&R at 3-4; Declaration in Support

of Motion for Attorneys’ Fees by Danielle Tarantolo ¶¶ 5-7, 38-

40, ECF. No. 43 (Tarantolo Decl.). Judge Orenstein, though,

recommended that the Court apply lower rates for each

timekeeper, in part to better align with the fees that courts in

this district typically apply in FDCPA cases. See R&R at 5

(observing that the hourly rates for FDCPA cases “regularly fall

on the lower end” of the fee range typically applied in this

district); see also Razilova v. Halstead Fin. Servs. LLC, No.

18-CV-1668, 2019 WL 1370695, at *7 (E.D.N.Y. Mar. 1, 2019),

report and recommendation adopted, No. 18-CV-1668, 2019 WL

1364399 (E.D.N.Y. Mar. 26, 2019) (in FDCPA cases, “decisions in

this District have determined reasonable hourly rates in FDCPA

cases at approximately $300-$350 for partners”). He also

concluded that lower hourly rates are appropriate because

(1) the legal issues in this case were not particularly novel;

(2) this case was resolved on an individual, rather than a

class, basis; and (3) the Plaintiffs’ attorneys are continuing

to litigate the same unresolved class claims in another lawsuit

in this district. See R&R at 5-6. While the attorneys “could

easily command higher rates to litigate more complex matters,”

id. at 6, Judge Orenstein concluded that a paying client seeking

to litigate this case efficiently would not be willing to pay

the rates the Plaintiffs’ counsel claimed, given the relatively

routine nature of the claims. Id.

The R&R recommends the following hourly rates: $350

for Tarantolo, $200 for Ranucci, and $80 for Li. Id. at 6

(citing Rudler v. Houslanger & Assocs., 2020 WL 473619, at *6

(E.D.N.Y. Jan. 29, 2020); Dagostino v. Computer Credit, Inc.,

238 F. Supp. 3d 404, 412 (E.D.N.Y. 2017)). Finding no clear

error in Judge Orenstein’s recommendation, I adopt the R&R’s

findings and recommendation regarding reasonable hourly rates

for each timekeeper.

B. Compensable Hours

An applicant seeking attorneys’ fees bears the burden

of establishing that the number of hours for which compensation

is sought is reasonable. Custodio v. Am. Chain Link & Const.,

Inc., No. 06-CV-7148, 2014 WL 116147, at *9 (S.D.N.Y. Jan. 13,

2014) (citing Cruz v. Local Union No. 3 of Int'l Bhd. of Elec.

Workers, 34 F.3d 1148, 1160 (2d Cir.1994)). Hours that are

“excessive, redundant, or otherwise unnecessary” are to be

excluded, and the court has discretion to deduct a reasonable

percentage of the number of hours claimed “as a practical means

of trimming fat from a fee application.” Rudler, 2020 WL

473619, at *7 (cleaned up).

Plaintiffs’ counsel seeks reimbursement for a total of

149.63 hours of work, including 48.45 hours by Tarantolo, 85.8

by Ranucci, and 15.38 by Li, as set forth in their billing

records. Pl. Br. at 7; Tarantolo Decl. Ex A. Counsel billed

time for developing the factual and legal bases of Plaintiffs’

claims, interviewing similarly situated individuals harmed by

Defendants’ conduct, and litigating Plaintiffs’ claims and

motions to amend the complaint. Pl. Br. at 8-9. Counsel states

that they took discretionary steps to reduce the bill by

categorically reducing the hours charged for certain types of

work performed and excluding time spent by attorneys other than

the three timekeepers named above. Id. at 10.

Defendants object to the compensable hours claimed on

two grounds. First, they argue that Plaintiffs’ counsel sought

reimbursement for an excessive number of hours of attorney work

time, particularly with respect to time spent drafting,

revising, discussing, and filing the original complaint.

Defendant’s Memorandum of Law in Opposition to Motion for

Attorneys’ Fees at 10, ECF No. 48 (Def. Br.). Plaintiffs billed

78.5 hours for these activities. Id. at 11. Second, they argue

that the Court should decline to award fees for the time

Plaintiffs’ counsel spent researching how to continue the action

after the original three Plaintiffs, Burkett, Foss, and Ortiz,

accepted their offers of judgment. Id. at 17. They argue that

this legal work was performed for non-parties and thus is not

recoverable in connection with the Plaintiff’s judgments. Id.

I agree with Judge Orenstein’s observation that the

timesheets show inefficiencies and what the R&R terms a

“manifestly excessive” number of hours billed for work on the

complaint. R&R at 8. Counsel billed nearly 80 hours — over

half of the total for this entire litigation — on a complaint

that should have taken significantly less time to complete,

especially when considering counsel’s experience and the

relatively straightforward issues here. Id. In another FDCPA

case in this district, the court found 49.5 hours to be an

excessive amount of time drafting and amending a complaint, and

reduced the total to 15 hours. See Rodriguez v. Pressler &

Pressler, L.L.P., No. 06-CV-5103, 2008 WL 5731854, at *6

(E.D.N.Y. Sept. 11, 2008), report and recommendation adopted in

pertinent part, No. 06-CV-5103, 2009 WL 689056 (E.D.N.Y. Mar.

16, 2009). Applying a substantially smaller reduction here, I

find that the 78.5 hours billed for the complaint should be

reduced to 40 hours (a difference of 38.5 hours). Reducing the

total number of hours billed (149.63) by 38.5 implies an overall

reduction of more than 25%. On this basis, I find that 25% is a

more appropriate across-the-board reduction than 15%. I apply

no reduction to any other time that the Plaintiffs’ attorneys

spent on this case.5

Judge Orenstein’s R&R also notes other billing

issues, including vague and imprecise time entries, R&R at 8,

and instances in which more senior attorneys needlessly billed

for tasks that could have been handled more efficiently by less

experienced colleagues, id. at 9. He notes that these are

separate grounds on which the Court could reduce the compensable

hours. Id. I find, however, that the 25% reduction in total

compensable hours described above, in combination with the

reduction in hourly rates, will result in a reasonable

attorneys’ fee award in this case.

Based on the hourly rates and compensable hours

detailed above, the presumptively reasonable fee award in this

case is $26,512.20, as summarized in the table below:

Hourly Rate Hours

Professional Requested Adjusted Requested Adjusted Adjusted Fee

Tarantolo $450 $350 48.45 36.34 $12,719.00

Ranucci $250 $200 85.8 64.35 $12,870.00

Li $100 $80 15.38 11.54 $923.20

Total 149.63 112.23 $26,512.20

5 Defendants also ask the Court to eliminate the time Plaintiffs’

counsel spent “researching how to continue the action” after Plaintiffs

Burkett, Foss, and Ortiz accepted their offers of judgment. Def. Br. at 17.

Whether Plaintiffs are truly entitled to attorneys’ fees for that work is at

least questionable, given that at least some of that research was for the

benefit of future, unnamed plaintiffs who are not part of this settlement.

Nevertheless, I do not disturb Judge Orenstein’s conclusion that this time

should be reimbursed. A reduction of the permissible hours on this ground

would be duplicative of Judge Orenstein’s decision to reduce the Plaintiffs’

attorneys’ hourly rate, given that he did so in part because Plaintiffs’

“attorneys are continuing to litigate the same unresolved class claims in

another lawsuit in this court.” See R&R at 6.

C. Costs

Finally, Plaintiffs seek reimbursement of $490 in

costs, including the $400 filing fee and $90 for service of

process. Tarantolo Decl. ¶ 53; R&R at 10. I adopt Judge

Orenstein’s recommendation that the Court award $490 in costs.

IV. Conclusion

For the reasons set forth above, the R&R is adopted in

part and modified in part. The Court awards Plaintiffs

$26,512.20 in attorneys’ fees and $490 in other costs, for a

total award of $27,002.20.

SO ORDERED.

_/s/ Eric Komitee_________________

ERIC KOMITEE

United States District Judge

Dated: September 30, 2020

Brooklyn, New York