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CANCIO v. FINANCIAL CREDIT NETWORK

July 6, 2005.

HAZEL CANCIO, Plaintiff,
v.
FINANCIAL CREDIT NETWORK, INC.; NATIONAL ELECTRONIC; and ALICIA SUNDSTROM, an individial, Defendant.



The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge

ORDER AWARDING ATTORNEYS' FEES AND COSTS

This matter came before the Court on Monday June 20, 2005 on Plaintiff's Motion for Award of Attorneys' Fees and Costs. After careful consideration of the parties' written and oral arguments, supporting documentation, and the record herein, the Court grants Plaintiff's Motion as set forth below.

I. BACKGROUND

  Plaintiff, Hazel Cancio, brought this suit on September 7, 2004, alleging that defendants — Financial Credit Network ("FCN"), National Electronic and Alicia Sundstrom — employed unlawful debt collection practices against her and other class members in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq ("FDCPA"). After limited discovery, on February 25, 2005 Plaintiff filed notice of acceptance of Defendant's Offer of Judgment, and on April 26 the Court entered an Amended judgment awarding Plaintiff $1,000 in statutory damages and directing Plaintiff to file a motion for fees and costs if the parties were not able to reach a compromise. Plaintiff now brings a Motion for Award of Attorneys' Fees and Costs. II. DISCUSSION

  The FDCPA entitles a successful plaintiff to reasonable attorneys' fees as determined by the court. 15 U.S.C. § 1692k(a)(3). This Circuit determines the amount of the prevailing party's reasonable fees according to the "lodestar" method, in which an initial estimate of fees is obtained by multiplying the number of hours reasonably expended by counsel on the litigation by a reasonable hourly rate. See Jordan v. Mulnomah County, 185 F.2d 1258, 1262 (9th Cir. 1987) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)). There is a "strong presumption" that this "lodestar" figure constitutes a reasonable attorneys' fee because most relevant considerations are subsumed within this intial calcuation. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 568, 564-65 (1986). Only in "rare" or "exceptional" cases will adjustment of the lodestar be appropriate. Id. at 565.

  A. Reasonable Hourly Rate

  In assessing a reasonable hourly rate, courts should consider the prevailing market rate in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Blum v. Stenson, 465 U.S. 886, 895-96 & n. 11 (1984); United Steelworkers of America v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990) ("Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.")

  1. Prevailing Market Rate in the Community

  Defendants first contend that the hourly rates sought by Plaintiff's counsel do not reflect the prevailing market rates for FDCPA litigation in the San Francisco Bay Area community. Defendants cite no precedent from the Ninth Circuit that provides authority regarding the prevailing market wages for such litigation in this area. Defendants instead cite the decisions in In re Martinez, 266 B.R. 523 (Bankr. S.D. Fla. 2001), Cooper v. Sunshine Recoveries, Inc., 2001 WL 740765 (S.D.N.Y. 2001), and Hagan v. MRS Assocs., 2001 WL 531119 (E.D. La. 2001) that awarded fees in FDCPA cases at hourly rates of $200 or less. All three cases are distinguishable on the basis of geographic disparity. The precedent in this District points to a higher hourly rate for FDCPA litigation. In Defenbaugh, an FDCPA case of similar complexity to the case at bar, this District set the hourly rate of Mr. Bragg at $435. Defenbaugh v. JBC & Asscs., Inc., 2004 WL 1874978 (N.D. Cal. 2004). In the notably more complex FDCPA Irwin case, this District set the hourly rate of counsel at $350 to $400. Irwin v. Mascott, No. C-97-4737 J, paragraph 1 (N.D. Cal. Sept. 11, 2002). These precedential decisions suggest that the hourly rate of attorneys in FDCPA litigation, both complex and non-complex, brought before this District Court is higher than in similar cases in the other locations identified by Defendants.*fn1

  2. Skill, Experience and Reputation

  An important factor in determining an attorney's hourly rate is his or her skill, experience and reputation within the legal field. This District has consistently set hourly rates in the range of $300 to $450 for attorneys that bring added value to the representation of their clients. See Hearn v. Barnhart, 262 F.Supp.2d 1033, 1036 (N.D. Cal. 2003) (awarding attorney with 26 years experience an hourly rate of $450); Oberfelder v. City of Petaluma, 2002 U.S. Dist. LEXIS 8635 (N.D.Cal. 2002) (awarding attorney with 30 years experience an hourly rate of $400); Freitag v. Cal. Dep't of Corrections, No. C00-02278 (N.D.Cal. Oct. 17, 2003) (awarding an hourly rate of $425 for an attorney with 20 years experience). In the case at bar, both attorneys have significant experience in FDCPA cases and in consumer law. Mr. Berg was admitted to the bar in 1965 and has practiced consumer and bankruptcy law through his solo practice since 1966. Berg Decl. ¶ 3. He has litigated over 20 FDCPA cases, in addition to numerous truth-in-lending and bankruptcy cases. Id. ¶ 9. In support of Mr. Berg's reputation and experience, he has submitted affidavits by consumer law attorneys Mark Chavez and James Sturdevant. Similarly, Mr. Bragg has been in practice for over thirty years. Bragg ¶ 2. After working at Legal Services Corporation-funded programs for over two decades, Mr. Bragg has limited his work to representing individuals in consumer issues through his solo practice. Id. at ¶ 3-4. Mr. Bragg's hourly rate for FDCPA cases was recently set at $435 in this District. See Defenbaugh, 2004 WL 1874978. The expertise of both Mr. Berg and Mr. Bragg is reflected in their hourly rates.

  3. Complexity of Litigation

  Defendants also contend that the reasonable market rate should be adjusted based on the complexity of the specific case. Thus Defendants argue that, even if the prevailing rate by lawyers of similar skill, experience and reputation suggests a high hourly rate, the simplicity of this case should lead to a reasonable reduction. In support they cite the Findings and Recommendations Re: Attorney's Fees in Finkelstein, in which this District concluded that the appropriate way to determine the relevant market for attorneys' hourly rates is to assess the complexity of the case at bar, in addition to the interests implicated in it and the rates generally paid in federal court in cases of roughly comparable complexity and significance. Finkelstein v. Bergna, 804 F.Supp. 1235 (N.D.Cal. 1992) The case at bar was not procedurally complex. However, neither party has made a clear persuasive argument as to its legal and factual complexity. In addition, Defendant has made no showing that the rates generally paid in this District for FDCPA litigation have been reduced due to lack of complexity. As noted above, this District has recently set the hourly rate for FDCPA litigation of comparable complexity by attorneys of considerable skill, experience and reputation at $400-$435. See Defenbaugh, 2004 WL 1874978.

  The affidavits presented by Mr. Berg and precedent set by this District supports an hourly rate for Mr. Berg of $345. In addition, in light of the precedent set through cases litigated by Mr. Bragg in this ...


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