ORDER
Plaintiff Michael Davis sued defendant Hollins Law, A Professional Corporation, alleging violations of the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (“FDCPA”) and California’s Rosenthal Fair Debt Collection Practices Act, Cal. Civ.Code §§ 1788-1788.33 '(“Rosenthal Act”). The gravamen of plaintiffs complaint was that defendant placed collection calls to his home phone, and left a voicemail message which failed to disclose that the communication was from a debt collector, thereby violating both statutes.
On April 15, 2014, a bench trial was held in this matter, where plaintiff was represented by Matthew Rosenthal, and defendant by Kathleen Hollins and Tamara Heathcote. At the and the Rosenthal Act. The court deferred its ruling on damages, and directed plaintiff to file a petition for attorney’s fees. The court will now turn to these issues.
I. DAMAGES
Plaintiff seeks statutory damages of $1000.00 under each of the FDCPA and the Rosenthal Act, for a total of $2000.00.
A. Damages under the FDCPA
1. Standard
The FDCPA provides for statutory damages. “[A]ny debt collector who fails to comply with any [FDCPA] provision ...
In determining the amount of statutory damages, “the court shall consider, among other relevant factors ... the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional.... ” 15 U.S.C. § 1692k(b).
2. Analysis
No evidence was introduced to suggest that defendant’s violation was anything other than a one-time occurrence. To the extent that the frequency and persistence of noncompliance is a factor, a de minimis award appears appropriate.
Similarly, the nature of the violation— omitting a required disclosure from a voi-cemail, itself left only after the parties had already, communicated several times — also does not support a significant award, as the court can discern no harm to plaintiff from the act. Contrast, e.g., Miranda v. Law Office of D. Scott Carruthers, No. 1:10-CV-01487-BAM,
Finally, while there is nothing in the record to suggest that the violation was intentional, the fact that defendant is a law firm, and that the statutory provision in question is so easily followed,
In light of the foregoing, the court will award plaintiff $250.00 in statutory damages under the FDCPA.
B. Damages under the Rosenthal Act
The Rosenthal Act, like the FDCPA, provides for both actual and statutory damages. But unlike the FDCPA, the Rosenthal Act premises any award of statutory damages on the defendant’s state of mind:
Any debt collector who willfully and knowingly violates this title with respect to any debtor shall, in addition to actual damages sustained by the debtor*1297 as a result of the violation, also be liable to the debtor only in an individual action, and his additional liability therein to that debtor shall be for a penalty in such amount as the court may allow, which shall not be less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000).
Cal. Civ.Code § 1788.30(b). Accord Yu v. Signet Bank/Virginia,
At trial, plaintiff failed to show, by a preponderance of the evidence, that defendant acted “wilfully and knowingly” in leaving the subject voicemail. Accordingly, plaintiff is not entitled to statutory damages under the Rosenthal Act.
II. PLAINTIFF’S BILL OF COSTS
Plaintiff has filed a bill of costs, seeking $2,392.90 in litigation costs. (ECF No. 90.) Under Local Rule 292(b), a bill of costs may only be filed and served “[w]ith-in fourteen (14) days after entry of judgment or order under which costs may be claimed....” Defendant is correct in noting that the court reserved its ruling on damages when trial ended. (Response to Petition for Attorney’s Fees and Costs (“Response”) • 19-21, ECF No. 96.) The U.S. Supreme Court has “long held that an order resolving liability without addressing a plaintiffs requests for relief is not final.” Riley v. Kennedy,
As the judgment herein will be final only upon entry of this order, plaintiffs bill of costs will be denied, without prejudice, as premature. After this order issues, plaintiff may submit a costs bill in accordance with Local Rule 292 and other applicable federal law.
III. ATTORNEY’S FEES
Plaintiff, as prevailing party, seeks $46,334.20 in attorney’s fees under the FDCPA and the Rosenthal Act.
A. Standard
The prevailing party in an FDCPA action may recover reasonable attorney’s fees, and costs, from the other side. 15 U.S.C. § 1692k(a)(3). “The FDCPA’s statutory language makes an award of fees mandatory.” Camacho,
Under Ninth Circuit precedent, district courts are to employ the “lodestar” method in determining reasonable attorney’s fees in FDCPA cases. Ferland v. Conrad Credit Corp.,
“Although in most cases, the lodestar figure is presumptively a reasonable fee award, the district court may, if circumstances warrant, adjust the lodestar to account for other factors which are not subsumed within it.” Ferland,
The Rosenthal Act also provides for an award of attorney’s fees and costs to the prevailing party, which “shall be entitled to costs of the action. Reasonable attorney’s fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing debtor.” Cal. Civ.Code § 1788.30.
B. Reasonableness of Hourly Rate
1. Attorney rates
Plaintiff has submitted time records for work billed on this case by five attorneys: Matthew Rosenthal, Douglas Baek, Jessica Pascale, and Rory Leisinger, for each of whom plaintiff claims an hourly rate of $290 per hour, and Ryan Lee, for whom plaintiff claims an hourly rate of $387 per hour.
According to plaintiff, Rosenthal was admitted to practice in California in December 2011 (Decl. Rosenthal ¶ 2, ECF No. 91-2), while Lee was admitted in March 2004 (Decl. Lee ¶2, ECF No. 91-2). Plaintiff does not specify when Baek, Pascale, and Leisinger were admitted, but a search of the State Bar of California website shows that they were admitted in December 2008, February 2009, and August 2011, respectively.
In support of the claimed rates,. plaintiff has submitted the declarations of Steven Solomon, Nicholas Bontrager, Todd Friedman, G. Thomas Martin III, and James Pacitti, all California attorneys who aver that they are experienced in consumer litigation. “Affidavits of the plaintiffs’
In support, plaintiff also submits a recent order in Castro v. Commercial Recovery Sys., No. 12-cv-00630 (N.D.Cal. Mar. 13, 2014) (EOF No. 91-5), awarding Lee $387 per hour.
Plaintiff also relies on the United States Consumer Law Attorney Fee Survey Report 2010-2011, compiled by Ohio-based attorney Ronald L. Burdge. (ECF No. 91-3.) According to the Survey Report, attorneys practicing consumer law in California for 1-3 years (e.g., attorney Leisinger) have an average hourly rate of $237, those practicing for 3-5 years (e.g., Baek and Pascale) have an average hourly rate of $347, and those who have practiced for 6-10 years (e.g., attorney Lee) have an average hourly rate of $387. (Id. at p. 24 of 67.) The court has reviewed the methodology underlying the Survey, and finds it credible. (Id. at pp. 9-11 of 67.)
District courts in California have differed on the appropriateness of considering the Survey Report when determining fee awards. In recent years, the majority have been willing to consider the Report’s results as evidence of prevailing hourly rates in FDCPA and Rosenthal Act cases. See Brown v. Mandarich Law Grp., No. 13-cv-04703-JSC,
Not all district courts agree. A number of the California decisions rejecting the Survey Report’s results originate in this judicial district. See, e.g., Fitzgerald v. The Law Office of Curtis O. Barnes, No. 1:12-cv-00071-LJO-GAS,
In determining whether to consider the findings of the Survey Report, the court begins by observing that debt collectors located in Los Angeles (such as the defendant herein), the San Francisco Bay Area, or San Diego can freely attempt to collect from consumers located in the Eastern District using telephone calls, letters, credit reporting, and/or collection actions. Moreover, defendants in recent FDCPA and Rosenthal Act cases filed in the Eastern District regularly rely on attorneys from elsewhere in the state to defend them. See, e.g., Alonso v. Blackstone Fin.
In the court’s view, consumers in the Eastern District ought to enjoy similar flexibility in responding to unfair collection practices that debt collectors do in defending themselves. While the Ninth Circuit has observed that “[generally, when determining a reasonable hourly rate, the relevant community is the forum in which the district court sits[,]” Prison Legal News v. Schwarzenegger,
Accordingly, I will award Lee his requested rate of $387 per hour, and Rosen-thal, Baek, and Pacal their requested rates of $290 per hour. Nevertheless, I will reduce Leisinger’s rate to $237 per hour, per the data in the Consumer Law Attorney Fee Survey Report 2010-2011.
2. Paralegal rates
Plaintiff has also submitted timé records for work billed on this case by a paralegal, one Ricardo Teamor, for whom he claims an hourly rate of $145.
Defendant correctly objects that plaintiff has failed to present any evidence of Tea-mor’s qualifications and experience. This is contrary to accepted practice in fee liti
As a result, per defendant, there is no way for the court to determine if .Teamor is actually a paralegal, or else an office administrator or secretary. Much of the work for which Teamor’s time is billed, such as preparing courtesy copies of documents for' the court and booking flights, is administrative or secretarial in nature. The only salient evidence defendant presents is a sentence in the Consumer Law Attorney Fee Survey Report 2010-2011, which reads, “The average California Consumer Law firm employs 1 paralegal whose median billable hourly rate is $137.... ” (Id. at p. 51 of 67.) However, this information is insufficient, standing alone, to justify the requested fees.
Under such circumstances, the court must deny any recovery for the alleged paralegal’s time.
C. Reasonableness of Hours Expended
For the purposes of calculating the lodestar figure, the court has discretion in determining the number of hours reasonably expended on this case. See Chalmers,
1. Defendant’s objections to time expended
According to plaintiff, his attorneys devoted a total of 139.8 hours to this case: 49.1 hours by Lee, 43.9 by Rosenthal, 32.6 by Baek, 8.7 by Pascale, and 5.5 by Leis-inger. (ECF No. 91-1.)
Defendant objects that much of this time was “duplicative, unreasonable, or excessive.” (Response 2.) Most of defendant’s objections are not well-taken. For example, defendant objects to plaintiffs billing 0.3 hours apiece for preparing requests for production, interrogatories, and requests for admission, and goes to great lengths to show that plaintiff has propounded similar, though not identical, discovery requests in other FDCPA cases. (Response 3-5.) This objection is not well-taken. It is perfectly reasonable to take more than 12 minutes and as much as 18 minutes (ie., the time increment encapsulated when billing 0.3 hours) to locate pre-existing discovery requests, modify these to reflect the facts of the new case, and then read them over for internal consistency. In the court’s view, defendant’s objections to these tasks, and many others, as taking too long are simply meritless.
That said, the court has reviewed all of the time entries that defendant contests and will reduce the following tasks, which each took too much time, to 0.1 hours apiece:
Dec 28, 2012 0.2 J. Pascale Receive ECF notice of case filed and supporting _documents_
Dec 31, 2012 0.3 J. Pascale Received ECF notice of Order setting Scheduling Conference; diaried dates and set to serve copy of _Order on Defendant ’_
Feb 5, 2013 0.2 J. Pascale Receive and review ECF notice of stipulation and order _to extend motion hearing date_
Mar 7, 2013 0.3 J. Pascale Received and reviewed Defendant’s notice to appear by telephone or continue hearing
Plaintiff also seeks to bill the 1.5 hours devoted by local counsel Leland Moglen to plaintiffs July 5, 2013 deposition at attorney Baek’s rate. This is impermissible. Moglen’s time must be billed at his own rate. Therefore, 1.5 hours of Baek’s time will be stricken.
Finally, defendant objects to attorney Rosenthal billing 2.0 hours for preparation of a trial brief in support of a motion for judgment as a matter of law. (Response 13.) As defendant points out, under Fed.R.Civ.P. 50, this motion is available only in a jury trial. Accordingly, this time will be stricken.
2. Defendant’s objections to venue
According to defendant, plaintiff incurred unnecessary expenses in traveling to Sacramento when he could have filed this case in the Central District of California, where defendant is located.
Under 28 U.S.C. § 1391(b), a case may be properly filed either in a judicial district in which defendant resides or a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. It was reasonable to file the action in the Eastern District based on the convenience to the plaintiff for deposition and trial. If defendant objected to the chosen venue, it could have brought a motion to transfer under 28 U.S.C. § 1404. Objecting to venue at this late date is churlish.
3. Defendant’s arguments regarding proportionality of fees and recovery
Despite defendant’s arguments to the contrary, the court sees no basis to require proportionality in FDCPA cases between the amount recovered and the amount of attorney’s fees available thereon. Given the relatively low value of the prescribed statutory damages, and in many instances, the unavailability of actual damages, imposing a proportionality requirement would entirely defeat the deterrence value of FDCPA lawsuits. If debt collectors who engage in unfair collection practices could be assured that they could avoid both significant damages and significant attorney’s fees, they would have little incentive to comply with the FDCPA’s requirements. Wronged debtors would also be less likely to find counsel absent the guarantee of fee-shifting, as the damages involved are often too low to support contingency-based representation. “As there rarely will be extensive damages, a rule of proportionality would discourage vigorous enforcement of the FDCPA.” Kottle v. Unifund CCR, LLC,
The court discerns no principled justification to deviate from these precedents. There exists no requirement of proportionality between the damages recovered and the attorney’s fees and costs ultimately awarded in FDCPA cases.
Based on the foregoing, the initial lodestar figure in this case amounts to $44,404.20, calculated as follows:
_Hours Hourly Rate Fees
Ryan Lee_49.1 $387_$19,001.70
Matthew Rosenthal 41,9_$290_$12,151.00
Douglas Baek_31.1_$290_$9,019.00
Jessica Pascale_81_$290 _$2,349.00
Rory Leisinger_5J>_$237_$1,303.50
Total_$43,824.20
Nevertheless, the court finds that a downward adjustment in the lodestar amount is merited.
E.Downward adjustment to lodestar
This case is unusual in that some portions of the litigation were meritorious, while others were entirely unnecessary. If either party had taken a few simple steps, the matter could have concluded far sooner. How this distinction between meritorious and needless activities should affect the attorney’s fee award is a difficult quesr tion.
Let us first turn to the meritorious portion. Defendant initially moved to dismiss and/or strike plaintiffs Rosenthal Act claim on the grounds that (i) as a law firm, it was exempt from the Act, and (ii) the voicemail it left plaintiff was protected activity under California’s anti-SLAPP statute. See Davis v. Hollins Law,
Defendant later filed a motion for summary judgment, arguing that, since the subject debt had been incurred on a business credit card, the collection voicemail was beyond the ambit of the FDCPA and the Rosenthal Act, which both address the collection of consumer debts. See Davis v. Hollins Law,
At this, point, the inquiry becomes more complicated. Plaintiff cross-moved for summary judgment, contending that defendant had violated the FDCPA and the Rosenthal Act by leaving him a voicemail which failed to identify defendant as a debt collector. However, plaintiff failed to adduce sufficient evidence to demonstrate that the subject debt had been incurred “primarily for personal, family, or household purposes,” rather than for business expenses. See id. at 1081. As a result, a triable issue of material fact as to the nature of the debt remained.
In the court’s view, this issue, of the alleged debt’s composition, could easily have been resolved earlier. But the blame for the failure appears to lie with both
On the other hand, defendant could have easily requested the billing statements for the subject debt from the original creditor, American Express, in order to verify whether the debt was primarily incurred for business purposes. If so, this case could easily have been disposed of at summary judgment. And if the bills instead showed that the debt was incurred “primarily for personal, family, or household expenses,” then defendant would have been .duty-bound under Fed.R.Civ.P. 11 not to argue otherwise at trial, and may have settled the case.
In other words, both parties failed to take actions that might have ended this case much earlier. Counsel’s failure to adequately prepare plaintiff for his deposition meant that this case could not be resolved on the cross-motion for summary judgment. Consequently, in order to penalize plaintiffs counsel for its errors, the court will reduce the lodestar amount available for the cross-motion, as follows.
In several instances, the court is unable to determine, from the submitted time records, how many hours were spent on plaintiffs cross-motion for summary judgment, as. opposed to plaintiffs opposition to defendant’s motion. These mixed-billing entries total 21.4 hours, all by attorney Lee. The court will reduce this time by 50%, to 10.7 hours.
Plaintiff also devoted 10.0 hours preparing its reply to defendant’s opposition to the cross-motion for summary judgment. These hours will be stricken.
The final award amount, then, will be $35,813.30, broken down as follows:
_Hours Hourly Rate Fees
Ryan Lee_28.4 $387_$10,990.80
Matthew Rosenthal 41.9 $290_$12,151.00
Douglas Baek_31.1 $290_$9,019.00
Jessica Pascale_84_$290_$2,349.00
Rory Leisinger_R5_$237_$1,303.50
Total_$35,813.30
IY. CONCLUSION
In light of the foregoing, the court hereby orders as follows:
[1] Plaintiff is AWARDED $250.00 in statutory damages under the FDCPA.
[2] Plaintiffs motion for costs is DENIED without prejudice.
[3] Plaintiff is AWARDED $35,813.30 in attorney’s fees under the FDCPA and the Rosenthal Act.
IT IS SO ORDERED.
Notes
. Courts have typically interpreted both Acts as providing statutory damages on a per-lawsuit, not a per-violation, basis. See, e.g., Nelson v. Equifax Info. Servs., LLC,
. To wit: “The following conduct is a violation of this section: ... the failure to disclose in subsequent communications that the communication is from a debt collector..:.” 15 U.S.C. § 1692e(ll).
. Despite plaintiff's failure to secure any Ro-senthal Act damages, he was the prevailing debtor, as he established a violation of Cal. Civ.Code § 1788.17, which incorporates many FDCPA provisions (including 15 U.S.C. § 1692e(l 1), which defendant violated) by reference, thereby turning violations of these provisions into Rosenthal Act violations.
. According to plaintiff, Baek, Pascale, and Leisinger are no longer employed by plaintiffs counsel. (Plaintiffs Petition at 7 n. 4, ECF No. 91.)
.The court may take judicial notice of the State Bar of California’s website regarding attorneys’ dates of admission to the Bar. These facts can be "accurately and readily determined” from the website, and the site’s accuracy regarding this information "cannot reasonably be questioned.” Fed.R.Evid. 201(b).