Dagostino v. Computer Credit, Inc.
238 F. Supp. 3d 404
E.D.N.Y2017Background
- Plaintiff sued under the FDCPA and filed an amended complaint; she later accepted a Rule 68 offer of judgment.
- Plaintiff moved for attorneys’ fees and costs; defendant opposed and both sides sought sanctions against opposing counsel in their briefs.
- Plaintiff’s counsel submitted a final timesheet and a draft timesheet; defendant highlighted discrepancies and alleged inaccuracies and other misconduct.
- The court reviewed hourly rates, contemporaneous time records, and specific challenged entries, and considered whether fees for work on the initial (unsuccessful) complaint and fees for preparing the fee reply were recoverable.
- The court awarded attorneys’ fees and costs but reduced hours for various deficiencies (non‑contemporaneous entries, unexplained increases between draft and final timesheets, block entries, and time spent on the unsuccessful initial complaint) and denied all sanction requests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees under the FDCPA | Prevailing consumer entitled to costs and reasonable attorneys’ fees under 15 U.S.C. §1692k | Fees should be denied because of alleged timesheet inaccuracies, misrepresentations by plaintiff, and counsel’s improper contacts | Fees awarded; defendant’s contentions rejected as insufficient to deny fees altogether |
| Reasonable hourly rate | Counsel requested $350–$575; argued experience and FDCPA work justify rates | Opposed as excessive for routine FDCPA work | Court set $350/hr for both lead attorneys as reasonable in the district given case complexity and counsel’s experience |
| Reasonable hours (billing reductions) | Sought ~35.9 hours plus 15 hours for reply work | Argued hours were excessive, timesheets inconsistent, and some entries unnecessary/duplicative | Court reduced hours: excluded 1.2 hrs (duplicative attorney), subtracted 5.7 unexplained added hrs, subtracted 0.8 non‑contemporaneous entry, then applied 15% reduction for block/vague entries and unsuccessful initial complaint, and awarded half of the 15 hrs for reply work; total 31.47 hrs at $350/hr ($11,014.50) |
| Costs and sanctions | Requested $496.58 initially and $270.70 additional for deposition transcript; sought sanctions against defendant for Rule 408 and other conduct | Opposed or contested some costs and sought sanctions against plaintiff’s counsel for timesheet discrepancies | Court awarded $767.28 in costs; denied both parties’ sanctions requests (no Rule 11 violation and draft timesheet use not sanctionable) |
Key Cases Cited
- Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (explains lodestar presumptively reasonable)
- Hensley v. Eckerhart, 461 U.S. 424 (lodestar: hours reasonably expended times reasonable rate)
- Arbor Hill Concerned Citizens Neighborhood Assoc. v. County of Albany, 522 F.3d 182 (standards for reasonable hourly rate and Johnson factors)
- Kirsch v. Fleet St., Ltd., 148 F.3d 149 (contemporaneous time records requirement; reductions for vagueness/duplicative entries)
- Millea v. Metro‑N. R.R. Co., 658 F.3d 154 (lodestar as presumptively reasonable)
- Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170 (fees for fee applications are compensable but may be reduced if excessive)
- Matusick v. Erie County Water Authority, 757 F.3d 31 (upholding large percentage reductions for surplusage/vague billing)
- Mareno v. Rowe, 910 F.2d 1043 (unsuccessful but nonfrivolous positions do not warrant sanctions)
- Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546 (lodestar includes most relevant fee factors)