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Archambault v. GC Services Limited Partnership

United States District Court, D. Maine

October 24, 2016




         The 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.

         I. BACKGROUND

         On 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.

         On 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).


         A. The Plaintiff's Motion

         Ms. Archambault originally sought an order awarding her $5, 870.00 in fees.[1]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.

         B. GC's Opposition

         After 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.

         GC's 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 denied.” Id.

         GC 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.

         Next, 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. ¶¶ 17-18.

         GC also 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.

         C. The Plaintiff's Reply

         In her 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.

         Turning 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.

         Next, 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.

         Ms. 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.

         Finally, she blames GC for contesting the fee application and adds another $1, 783.00 in fees for ...

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