United States District Court, D. Maine
ORDER ON MOTION FOR ATTORNEY'S FEES
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
Court awards Plaintiff most but not all of the attorney's
fees she has requested under the fee-shifting provisions of
the Fair Debt Collection Practices Act, 15 U.S.C. § 1692
et seq., and the Maine Fair Debt Collection
Practices Act, 32 M.R.S. § 11001 et seq.
February 22, 2016, Kelly Archambault filed a complaint under
the Fair Debt Collection Practices Act (FDCPA) and under the
Maine Fair Debt Collection Practices Act (MFDCPA), alleging
that GC Services Limited Partnership (GC) violated both
statutes by failing to provide her with statutorily-required
validation notices. Compl. (ECF No. 1). Ms.
Archambault served GC on March 1, 2016. Summons in a
Civil Action and Proof of Serv. (ECF No. 4). On March
14, 2016, before GC answered the Complaint, Ms. Archambault
filed a notice of settlement. Notice of Acceptance of
Rule 68 Offer of J. (ECF No. 5). Ms. Archambault
accepted a settlement of $1, 000 “plus costs of the
action, together with a reasonable attorney's fee as
determined by the Court.” Id. at 1.
March 31, 2016, Ms. Archambault filed a motion for
attorney's fees. Pl. Kelly Archambault's
Counsel's Claim for Fees and Expenses (ECF No. 10)
(Pl.'s Mot.). On April 21, 2016, GC filed its
opposition to the motion, which it amended the following day.
Def., GC Servs. Limited Partnership's, Opp'n to
Pl.'s Claim for Fees (ECF No. 12); Def., GC
Servs. Limited Partnership's, First Am. Opp'n to
Pl.'s Claim for Fees (ECF No. 14) (Def.'s
Opp'n). On May 5, 2016, Ms. Archambault replied.
Pl.'s Reply Mem. in Further Supp. of Pl.'s Claim
for Fees (ECF No. 16) (Pl.'s Reply).
THE PARTIES' POSITIONS
The Plaintiff's Motion
Archambault originally sought an order awarding her $5,
870.00 in fees.Pl.'s Mot. at 7. She bases
this claim on legal work performed by two attorneys, Andrea
Bopp Stark and Elizabeth Miller. Id. at 1-2.
Attorney Stark says that she devoted 16.3 hours to the case;
Attorney Miller says that she devoted 6 hours to the case.
Id. Attach. 1 Aff. of Andrea Bopp Stark in Supp.
of Pl.'s Mot. for Award of Att'ys Fees ¶ 17
(Stark Aff.); id. Attach. 2 Aff. of
Elizabeth A. Miller in Supp. of Pl.'s Mot. for Award of
Att'ys Fees ¶ 8 (Miller Aff.).
Attorney Stark's hourly rate is $285.00; Attorney
Miller's is $350; Attorney Stark's paralegal's is
$115.00. Stark Aff. ¶ 17; Miller
¶ 8. Both Attorneys Stark and Miller reduced their
normal hourly rate to $200 for matters relating to the fee
application. Stark Aff. ¶ 22; Miller
Aff. ¶ 9. Attorney Stark is requesting 11.3 hours
at $285 per hour, 2.7 hours at $200 per hour, and 2.3 hours
at $115 per hour. Stark Aff. ¶ 17. Attorney
Miller is requesting 4.3 hours at $350 per hour and 1.7 hours
at $200 per hour. Miller Aff. ¶ 8. This
initially totaled $5, 870.00 in fees. Pl.'s Mot.
at 7. However, Ms. Archambault is requesting an additional
$1, 783.00 for her counsel's work in replying to GC's
response for a revised total of $7, 653.00. Pl.'s
Reply at 6.
reciting the brief history of this case, GC says that of the
$5, 870 in attorney's fees, “$2, 944 . . . is
reportedly to prepare a fee application.”
Def.'s Opp'n ¶ 2. Furthermore, GC
asserts that Ms. Archambault's Complaint was “not
complicated nor is the form unique.” Id.
¶ 3. GC maintains that “it is unreasonable to
suggest that handling this matter required over 22 hours of
attorney's fees billed by two attorneys and a paralegal
for a relatively simple matter that was immediately settled
through an offer of judgment.” Id. ¶ 4.
It alleges that “[a]ll, or substantially all, of this
work could have been performed by a paralegal or one
associate billing at a significantly lower rate.”
Id. GC also argues that there was no need to involve
co-counsel. Id. GC even contends that the Court
should deny the fee application “in its entirety for
failing to provide the Court with admissible, supporting
documentation.” Id. ¶ 5.
ground for urging the Court to deny the attorney's fee
application in its entirety is its contention that Attorneys
Stark and Miller supplied deficient affidavits in support of
the motion. Id. ¶ 8. GC notes that Attorney
Stark's jurat was “inexplicably” unsigned and
it argues her statement that the affidavit was being signed
“under the pains and penalties of perjury” does
not “qualify as an unsworn declaration under 28 U.S.C.
§ 1746” because it does not “substantially
comply with the required wording in the statute.”
Id. Citing Michael v. Liberty, No.
07-103-P-H, 2007 WL 2251413 (D. Me. Aug. 1, 2007), GC says
that the “same deficiencies plague” Attorney
Miller's affidavit. Id. It contends that
“[i]n the absence of an affidavit in support of
Plaintiff's fee application, the application must be
turns then to the application itself. GC points out that even
if the lodestar method of multiplying the number of hours by
a reasonable hourly rate is applicable, the Court must
determine whether the hours were “productively
spent.” Id. ¶ 9 (quoting Nkihtaqmikon
v. Bureau of Indian Affairs, 723 F.Supp.2d 272, 277 (D.
Me. 2010)) (emphasis in GC memorandum). GC notes that courts
typically subtract from the total figure “hours which
were duplicative, unproductive, excessive, or otherwise
unnecessary.” Id. ¶ 10 (quoting
Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992)
(quoting Grendel's Den, Inc. v. Larkin, 749 F.2d
945, 950 (1st Cir. 1984))) (emphasis in GC memorandum).
Regarding duplicative work, GC complains that Ms. Archambault
used the services of two lawyers when one should have done.
Id. ¶¶ 11-13. It urges the Court to award
only one lawyer, not two, for her work in this case.
Id. ¶ 13. Specifically, it says that the Court
should award Attorney Miller her fees of $1, 845, but deny
any fees to Attorney Stark. Id. Alternatively, GC
argues that, given Attorney Stark's experience with FDCPA
cases and her designation as lead counsel, the Court should
award only Attorney Stark her fees and should exclude
Attorney Miller's fees. Id. ¶ 21.
GC challenges ten entries in Attorney Stark's itemized
bill, totaling $507.50 because, in its view, the work was
unnecessary. Id. ¶ 14. GC disputes these items
because it claims that, given her level of expertise,
Attorney Stark should not have needed to “research the
FDCPA, offers of judgment, or fee applications.”
Id. ¶ 15. GC also argues against six entries in
Attorney Stark's bill that total $380 claiming that the
work is clerical, not legal work. Id. ¶¶
objects to Attorney Stark's hourly rate for seven entries
on her attorney's fee application, contending that
Attorney Stark erred in billing seven entries at her $285
hourly rate that should have been billed at the lower $200
hourly rate. Id. ¶¶ 19-20.
The Plaintiff's Reply
reply, Ms. Archambault first observes that GC does not
dispute that she is entitled to reasonable attorney's
fees pursuant to the FDCPA and the Offer of Judgment.
Pl.'s Reply at 1. Ms. Archambault says in effect
that GC itself is responsible for the “escalation in
fees” attendant to the attorney's fee application
because GC “refused to voluntarily pay” the
original reasonable amount of fees. Id. at 1-2.
to GC's issues with the attorney affidavits, Ms.
Archambault says that the affidavits were “signed
electronically in compliance with Local Rule 10 and the
notarized originals were held in the offices of Molleur
Law.” Id. at 2. She also refers to the
supplemental affidavits filed by both attorneys. Id.
noting that GC is a “very experienced and active debt
collector, ” Ms. Archambault explains the work her
counsel undertook to make certain they were not overlooking
something “in order to give GC Services the benefit of
the doubt before rushing to the courthouse.”
Id. She then itemizes the legal work her counsel
performed and argues that the fact that GC capitulated so
readily is a “testament to the successful groundwork
laid by Plaintiff's counsel both before and after the
complaint was filed.” Id. at 2-3.
Archambault also defended Attorney Stark's use of
Attorney Miller as co-counsel. Id. at 3-4. Ms.
Archambault said that, as the only attorney in her firm
conversant with consumer litigation, Attorney Stark concluded
that she needed additional expertise and that she and
Attorney Miller divided the work to be most efficient.
Id. at 3. Attorneys Stark and Miller, Ms.
Archambault contends, “voluntarily deleted hours from
their time records before submission of the fee application
to avoid any perceived duplication.” Id. at 4.
In fact, she noted that GC was represented by more than one
attorney. Id. at 3 n.1.
she blames GC for contesting the fee application and adds
another $1, 783.00 in fees for ...