United States District Court, E.D. Wisconsin
KYLE SPUHLER AND NICHOLE SPUHLER, on behalf of themselves and all others similarly situated, Plaintiffs,
STATE COLLECTION SERVICES, INC., Defendant.
DECISION AND ORDER ON PLAINTIFFS' MOTION FOR
ATTORNEYS' FEES AND COSTS
JOSEPH UNITED STATES MAGISTRATE JUDGE.
and Nichole Spuhler filed a single count complaint against
State Collection Services, Inc. alleging that a debt
collection letter sent to them violated the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692, et seq. The Spuhlers alleged that the letter was
misleading because it (1) improperly attempted to collect
interest on the debt, (2) failed to specify which portion of
the amount due was interest as opposed to principle, and (3)
failed to indicate that interest was accruing on the amount
due. Summary judgment was granted in State Collection's
favor as to the first two arguments, and, after a motion for
reconsideration was filed, summary judgment was granted in
the Spuhlers' favor as to the third argument. The
Spuhlers now seek attorneys' fees and costs in the amount
of $210, 083.45 in attorneys' fees and $34, 341.35 in
costs. State Collection opposes the motion. For the reasons
below, the Spuhlers' motion is granted in part and denied
the FDCPA, a debt collector is liable for “the costs of
the action, together with a reasonable attorney's fee as
determined by the court.” 15 U.S.C. § 1692k(a)(3);
see Tolentino v. Friedman, 46 F.3d 645, 651-52 (7th
Cir. 1995). The general rule for calculating attorneys'
fee awards under fee shifting statutes is applicable to
attorneys' fees awards under the FDCPA. Gastineau v.
Wright, 592 F.3d 747, 748-49 (7th Cir. 2010). The
starting point for determining reasonable attorneys' fees
is the lodestar method, which is calculated by multiplying
the No. of hours reasonably expended by the reasonable hourly
rate. Pickett v. Sheridan Health Care Center, 664
F.3d 632, 639 (7th Cir. 2011) (citing Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983)). There is a
“strong presumption that the lodestar represents the
reasonable fee.” City of Burlington v.
Dague, 505 U.S. 557, 562 (1992) (internal citation
omitted); Pickett, 664 F.3d at 639. However, once the
lodestar is determined, the court may adjust the fee upward
or downward based on a variety of factors, the most important
of which is the degree of success obtained. Hensley, 461 U.S.
at 430 n.3, 436. The other factors to be considered as
delineated by the Supreme Court are:
(1) the time and labor required; (2) the novelty and
difficulty of the question; (3) the skill requisite to
perform the legal service properly; (4) the preclusion of
employment by the attorney due to the acceptance of the case;
(5) the customary fee; (6) whether the fee is fixed or
contingent; (7) any time limitations imposed by the client or
the circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the
plaintiff's attorney; (10) the
“undesirability” of the case; (11) the nature and
length of the professional relationship with the client; and
(12) awards in similar cases.
Tolentino, 45 F.3d at 652 (citing Hensley, 461 U.S.
at 441). In sum, “[t]he standard is whether the fees
are reasonable in relation to the difficulty, stakes, and
outcome of the case.” Connolly v. Nat'l Sch.
Bus Serv., Inc., 177 F.3d 593, 597 (7th Cir. 1999). The
fee applicant bears the burden of “produc[ing]
satisfactory evidence-in addition to the attorney's own
affidavits-that the requested rates are in line with those
prevailing in the community.” Id. (quoting
Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). If
the fee applicant satisfies this burden, the burden shifts to
the other party to offer evidence that sets forth “a
good reason why a lower rate is essential.”
Id. (internal quotation and citations omitted).
Calculation of the Lodestar
Spuhlers seek fees for three attorneys and two support staff
members. Specifically, they request 234.1 hours at a rate of
$350.00/hour (for a total of $81, 935.00) for Attorney Nathan
DeLadurantey, 88.4 hours at a rate of $300.00/hour (for a
total of $26, 520.00) for Attorney Heidi Miller, 212.90 hours
at a rate of $450.00/hour for Attorney Thomas J. Lyons, Jr.
(for a total of $95, 803.45), 5.6 hours at a rate of
$125.00/hour (for a total of $700.00) for support staff
member Ethan Webb, and 41.5 hours at a rate of $125.00/hour
(for a total of $5, 125.00) for legal assistant Andrea Weber.
(Declaration of Nathan E. DeLadurantey ¶¶ 19-23,
Docket # 132; Declaration of Thomas J. Lyons, Jr. ¶ 7,
Docket # 131.)
State Collection does not challenge the hourly rate for the
two support staff members (Webb and Weber), it challenges the
hourly rates of the three attorneys. State Collection argues
that the Spuhlers failed to submit any evidence, besides
their own affidavits and citations to other cases, in support
of the attorneys' claimed hourly rates. (Def.'s Br.
at 12-13, Docket # 135.) The Spuhlers responded by providing
the United States Consumer Law Attorney Fee Survey Report,
last updated 2015-2016, which it argues further supports
their requested hourly rates. (Declaration of Thomas J.
Lyons, Jr. ¶ 1, Ex. 1, Docket # 138-1.)
reasonable hourly rate is:
[O]ne that is “derived from the market rate for the
services rendered.” We presume that an attorney's
actual billing rate for similar litigation is appropriate to
use as the market rate. The fee applicant bears the burden of
“produc[ing] satisfactory evidence-in addition to the
attorney's own affidavits-that the requested rates are in
line with those prevailing in the community.”
Pickett v. Sheridan Health Care Ctr., 664 F.3d 632,
640 (7th Cir. 2011) (internal citations omitted). The court
can apply other factors to determine an appropriate rate,
such as the lawyer's years of experience. See Houston
v. C.G. Sec. Servs., Inc., 820 F.3d 855, 860 (7th Cir.
2016). The party seeking a fee award bears the burden of
establishing the market rate for the work; if the lawyers
fail to carry that burden, the district court can
independently determine the appropriate rate. Montanez v.
Simon, 755 F.3d 547, 553 (7th Cir. 2014).
the Spuhlers state that their counsels' billing rates are
as follows: $350.00/hour for Attorney DeLadurantey, a
practitioner with approximately thirteen years of experience;
$300.00/hour for Attorney Miller, a practitioner with
approximately seven years of experience; and $450.00/hour for
Attorney Lyons, a practitioner with approximately twenty-five
years of experience. (DeLadurantey Decl. ¶ 10;
Declaration of Heidi Miller, ¶ 12, Docket # 132-5; Lyons
Decl. ¶ 4.) The Spuhlers argue these rates are
reasonable, citing to DeLadurantey's declaration in which
he states that his private paying clients regularly pay him
$350.00/hour and pay Attorney Miller $300.00/hour.
(DeLadurantey Decl. ¶¶ 18, 20); Lyons'
declaration in which he states that his rate of between
$400.00 to $450.00/hour has been approved by multiple courts
in other districts (Lyons Decl. ¶ 7); and a case in this
district where the court awarded Attorney Miller fees at a
rate of $300.00/hour for a default judgment (Docket # 132-5).
Spuhlers also point to the Fee Survey, which several courts
in this district have recognized as a reliable resource in
determining the reasonableness of an attorney's hourly
rate, particularly in conjunction with consideration of
counsel's experience. See Moreland v. Dorsey Thornton
& Assocs., LLC, No. 10-CV-867, 2011 WL 1980282, *3
(E.D. Wis. May 20, 2011) (relying on counsel's website,
which lists the attorney profiles, along with the United
States Consumer Law Attorney Fee Survey in determining that
the requested hourly rate was reasonable); House v.
Shapiro & Price, No. 10-CV-842, 2011 WL 1219247
(E.D. Wis. Mar. 30, 2011) (same); Suleski v. Bryant
Lafayette & Assocs., No. 09-C-960, 2010 WL 1904968
(E.D. Wis. May 10, 2010) (same). According to the Fee Survey,
the median rate for attorneys handling credit rights cases in
the Milwaukee area is $350.00/hour. (Docket # 138-1 at 372.)
one year ago, a court in this district, considering the same
evidence the Spuhlers now put forward, set Attorney
DeLadurantey's reasonable rate at $300.00/hour and
Attorney Miller's reasonable rate at $220.00/hour.
Strohbehn v. Weltman Weinberg & Reis Co. LPA,
No. 16-CV-985-JPS, 2018 WL 1997989, at *4 (E.D. Wis. Apr. 27,
2018). In so doing, the court considered the fact that in May
2016, another court in this district found an hourly rate of
$300.00 for Attorney DeLadurantey and $250 for Attorney
Miller to be reasonable. Id. at *3 (citing
Gagliano v. State Collection Serv., No. 14-CV-1512,
2016 WL 2853538, at *2 (E.D. Wis. May 13, 2016)). The
Spuhlers attempt to distinguish their case from Gagliano,
noting that Gagliano was litigated approximately two years
prior to this action and was not a class action. (Pl.'s
Br. at 14.) While Gagliano was filed two years prior,
Strohbehn was litigated contemporaneously with the
Spuhlers' case. While Strohbehn was also not a class
action, I agree with the court's analysis in Strohbehn
that to “achieve some level of consistency, ”
Id. at *4, the rates awarded in Strohbehn are
appropriate. Thus, I will set Attorney DeLadurantey's
rate at $300.00/hour and set Attorney Miller's rate at
Attorney Lyons, even considering the median rate for the
Minneapolis area (where he is located), the average rate for
an attorney handling credit rights cases is $350.00/hour.
(Docket # 138-1 at 280.) A Minnesota court in 2017 noted that
Attorney Lyons' rate of $450.00/hour was above the market
average for Minnesota and reduced the rate to $350.00/hour.
Kuntz v. Messerli & Kramer, No. 16-CV-2676, 2017
WL 3332222, at *2-3 (D. Minn. Aug. 4, 2017). Given the fact
Attorney Lyons is a ...