Bannister v. Berkman Henoch Peterson Peddy & Fenchel, PC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LATASHA BANNISTER, individually and on

behalf of all others similarly situated,

Plaintiff, ORDER

20-CV-1810 (MKB) (AKT)

v.

BERKMAN HENOCH PETERSON PEDDY &

FENCHEL, PC,

Defendant.

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MARGO K. BRODIE, United States District Judge:

Plaintiff Latasha Bannister, on behalf of herself and others similarly situated, commenced

the above-captioned action against Defendant Berkman Henoch Peterson Peddy & Fenchel, PC,

alleging violations of the Fair Debt Collection Practices Act (the “FDCPA”), 15 U.S.C. § 1692 et

seq. (Compl., Docket Entry No. 1.) After reaching a settlement, (Min. Order dated Jan. 29,

2021, Docket Entry No. 22), Plaintiff moved for attorneys’ fees in the amount of $12,174.60, and

Defendant opposed the motion.1 On March 9, 2021, the Court referred Plaintiff’s motion to

Magistrate Judge A. Kathleen Tomlinson for a report and recommendation. (Order dated Mar. 9,

2021.) By report and recommendation dated July 23, 2021, Judge Tomlinson recommended that

the Court grant Plaintiff’s motion in part and deny it in part (the “R&R”). (R&R, Docket Entry

No. 26.) No party has opposed the R&R.

1 (See Pl.’s Mot. for Attorneys’ Fees (“Pl.’s Mot.”), Docket Entry No. 23; Pl.’s Mem. in

Supp. of Pl.’s Mot. (“Pl.’s Mem.”), Docket Entry No. 23-1; Def.’s Mem. in Opp’n to Pl.’s Mot.

(“Def.’s Opp’n”), Docket Entry No. 24.)

For the reasons set forth below, the Court adopts the R&R and grants Plaintiff’s motion

for attorneys’ fees in part and denies it in part.

I. Background

In the R&R, Judge Tomlinson recommended that the Court award Plaintiff (1) $8,727.80

in attorneys’ fees and (2) $475.60 in costs, for a total of $9,203.40. (R&R 21.)

First, Judge Tomlinson examined the hourly rates of Plaintiff’s counsel. (Id. at 12–15.)

Judge Tomlinson found that an hourly rate of $370 for Plaintiff’s attorneys Craig Sanders and

David Barshay was reasonable because courts in this district have previously awarded them the

same hourly rate and because they have over twenty years of experience with a focus on

consumer protection law. (Id. at 12–13.) Judge Tomlinson found that the requested hourly rate

of $300 for Jonathan Cader, a senior associate who practiced law for more than a decade but

“only recently focused his practice on consumer protection claims” was too high and reduced his

hourly rate to $250. (Id. at 13–14.) Judge Tomlinson also reduced the requested hourly rate for

Nicole Rallis, a second-year associate, from $200 to $160 because $160 an hour is consistent

with her level of experience. (Id. at 14.) Judge Tomlinson adopted the $90 hourly rate for

Angeliza Franco, a paralegal, because Defendant did not object to this rate and because the rate

“falls within the range which courts in this [d]istrict have found to be reasonable for paralegals.”

(Id. at 14–15.)

Next, Judge Tomlinson assessed the reasonableness of the 35.8 hours billed by Plaintiffs’

counsel. (Id. at 15–21.) Judge Tomlinson declined to credit Plaintiff’s counsel’s hours expended

in preparing the reply brief for the instant motion because Plaintiff failed to submit

contemporaneous billing records to substantiate the 4.6 hours expended on the reply brief. (Id. at

16.) Judge Tomlinson found that while “this was a simple and straightforward FDCPA case at

the outset, which did not present novel issues or require extensive discovery,” the parties

complicated the litigation when Defendant served a Rule 68 offer of judgment and Plaintiff

responded to outstanding discovery demands instead of “seek[ing] a stay or an extension of time

. . . [regarding] discovery in order to explore settlement.” (Id. at 16–17.) Judge Tomlinson also

reviewed the specific time entries in the contemporaneous billing records for the attorneys who

worked on the case and found that (1) as to Barshay, although 1.9 hours were billed overall, only

1.3 hours were recommended because some work was duplicative of Cader’s work and some

entries were vague or unclear; (2) as to Cader, the 3.1 hours billed were reasonable; (3) as to

Sanders, an across-the-board reduction was warranted because there were “a number of entries

where the task at hand could have . . . been performed by a less experienced attorney or

paralegal” that were billed at the partner rate, and the billing of 3.5 hours for a two-page

settlement position was excessive; (4) as to Rallis, an across-the-board reduction was warranted

because she billed work that should have been done by a paralegal and some of her work was

duplicative of Sanders’ work — a practice this firm was warned of in previous unrelated cases;

and (5) as to the paralegal, the hours billed were generally reasonable although there were two

entries that were billed for a total of .6 hours when they would “realistically appear to take about

[one tenth of an] hour combined.” (Id. at 18–19.) In addition to the issues with Rallis’ and

Sanders’ hours, Judge Tomlinson found that a fifteen percent across-the-board reduction in

attorneys’ fees from $10,268.00 to $8,727.80 was appropriate because the time spent on

preparing and responding to certain interrogatories was excessive. (Id. at 20–21.)

Finally, Judge Tomlinson recommended that the Court award costs in the requested

amount of $475.60 because Plaintiff paid $400 for the filing fee and $75.60 for service of

process. (Id. at 21.) Accordingly, Judge Tomlinson recommended that the Court award

$8,727.80 in attorneys’ fees and $475.60 in costs for a total award of $9,203.40. (Id. at 21.)

No party has objected to the R&R and the time for doing so has passed.

II. Discussion

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). “Where parties receive clear notice of the consequences, failure to

timely object to a magistrate’s report and recommendation operates as a waiver of further

judicial review of the magistrate’s decision.” Smith v. Campbell, 782 F.3d 93, 102 (2d Cir.

2015) (quoting Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002)); see also

Phillips v. Long Island R.R. Co., 832 F. App’x 99, 100 (2d Cir. 2021) (same); Almonte v. Suffolk

County, 531 F. App’x 107, 109 (2d Cir. 2013) (“As a rule, a party’s failure to object to any

purported error or omission in a magistrate judge’s report waives further judicial review of the

point.” (quoting Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003))); Sepe v. N.Y. State Ins. Fund,

466 F. App’x 49, 50 (2d Cir. 2012) (“Failure to object to a magistrate judge’s report and

recommendation within the prescribed time limit ‘may operate as a waiver of any further judicial

review of the decision, as long as the parties receive clear notice of the consequences of their

failure to object.’” (first quoting United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997);

and then citing Thomas v. Arn, 474 U.S. 140, 155 (1985))); Wagner & Wagner, LLP v. Atkinson,

Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (“[A] party

waives appellate review of a decision in a magistrate judge’s [r]eport and [r]ecommendation if

the party fails to file timely objections designating the particular issue.” (first citing Cephas, 328

F.3d at 107; and then citing Mario, 313 F.3d at 766)).

The Court has reviewed the unopposed R&R and, finding no clear error, adopts the R&R

pursuant to 28 U.S.C. § 636(b)(1).

III. Conclusion

Accordingly, the Court adopts the R&R and grants Plaintiff’s motion for attorneys’ fees

in part and denies it in part. The Court awards $8,727.80 in attorneys’ fees and $475.60 in costs

for a total award of $9,203.40. The Clerk of the Court is directed to enter judgment and close the

case.

Dated: August 12, 2021

Brooklyn, New York

SO ORDERED:

s/ MKB

MARGO K. BRODIE

United States District Judge