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Joel Rubenstein v. National Recovery Agency

April 25, 2012


The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge


Before the Court is Plaintiff's Motion for Attorney's Fees and Costs. (Dkt. No. 21.) Having considered the papers filed in support of and in opposition to Plaintiff's Motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the following reasons, the Court GRANTS Plaintiff's Motion, subject to the limitations discussed below.


On July 13, 2011, Defendant National Recovery Agency, Inc. telephoned Plaintiff Joel Rubenstein attempting to collect a $446.10 debt that Plaintiff claimed he did not owe. (Compl. 3.) When Plaintiff requested specific information regarding Defendant and the alleged debt, Defendant refused and threatened to call Plaintiff every day until the debt was resolved. (Id. at 2--3.) Defendant had reported the alleged debt to three credit-reporting agencies, thereby harming Plaintiff's credit rating. (Id. at 3--4.) Subsequent to the phone conversation, Defendant informed the credit-reporting agencies that Plaintiff's debt was disputed. (Chille Decl. Ex. 1, at 1.)

Plaintiff retained counsel ("Counsel") on July 28, 2011, to resolve his issues with Defendant. (See Mot. Ex. B, at 1.) On August 15, 2011, Plaintiff filed a complaint against Defendant alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, and the Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ. Code § 1788. (Dkt. No. 1.) Plaintiff asserted that Defendant made deceptive, misleading, and confusing representations while seeking to recover a debt Plaintiff did not owe. (Compl. 3.) Plaintiff also contended that Defendant falsely reported the alleged debt to three credit-reporting agencies. (Compl. 3--4.) At some point, Plaintiff paid the alleged debt to rectify his credit rating. (Mot. 4--5.)

In response, Defendant informed the agencies on August 9, 2011, that Plaintiff's account should be deleted, which would reverse any harm to Plaintiff's credit rating. (See Opp'n 2.) By September 7, 2011, two of the credit-reporting agencies had deleted Plaintiff's account. (Chille Decl. Ex. 2, at 1.) On August 29, 2011, Defendant informed Plaintiff that the third agency could take up to 90 days to delete his account, but that Plaintiff could expedite the process by filing a dispute directly with the credit-reporting agency himself. (Chille Decl. Ex. 3, at 1.) Defendant provided Plaintiff with the website address where Plaintiff could file his dispute. (Id.) Plaintiff did not follow this advice until February 13, 2012-more than five months after Defendant suggested Plaintiff do so.*fn1 (Mot. Ex. B, at 3.)

According to Counsel's billing records, Plaintiff began settlement negotiations on August 29, 2011. (Reply 5.) On September 22, 2011, Plaintiff demanded $15,000.00 to settle the case. (Chille Decl. ¶ 13(e); see Reply 5.) Defendant rejected this request.

On February 6, 2012, Defendant offered $3,000.00 to settle the case, inclusive of attorney's fees and costs. (Mot. 6.) Plaintiff declined the offer, so Defendant increased the amount by $750.00; this too was rejected. (Id.)

Later on February 6, 2012, Defendant served Plaintiff with a Federal Rule of Civil Procedure 68 Offer of Judgment for $2,500.00, exclusive of attorney's fees and costs. (Opp'n 3.) The Offer of Judgment represented the maximum statutory awards under the FDCPA and the RFDCPA-$1,000.00 each-and Plaintiff's actual damages of $500.00. (Mot. 6.) Reasonable attorney's fees and costs were to be determined subsequently. (Id.) Plaintiff accepted Defendant's Offer of Judgment on February 14, 2012. (Id.)

Following these events, Plaintiff filed a Motion for Attorney's Fees and Costs. (Dkt. No. 21.) Plaintiff seeks an hourly rate of $325.00 for 50.6 hours of work, totaling $16,445.00. (Mot. 10.) In opposition, Defendant argues Counsel's hourly rate and total number of hours expended on the case are excessive. (Dkt. No. 22.)


In the United States, each party to a lawsuit ordinarily is responsible for its own attorney's fees, absent "express statutory authorization to the contrary." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). Both the FDCPA and RFDCPA authorize an award of costs and reasonable attorney's fees in a successful action to enforce liability for a violation of the Acts. 15 U.S.C. § 1692k(a)(3); Cal. Civ. Code § 1788.30.

Courts use a two-part test to determine whether a fee is reasonable. Pennsylvania v. D.E. Valley Citizens' Council for Clean Air, 478 U.S. 546, 564 (1986). First, a court determines a "lodestar" amount by multiplying the number of hours reasonably expended by a reasonable hourly rate. Id. Second, the court may employ various factors to adjust the lodestar amount as necessary. Id. at 564--65. There is a strong presumption that the lodestar figure represents a reasonable fee. Perdue v. Kenny A., 130 S. Ct. 1662, 1673 (2010). Nevertheless, the party requesting the fees first must prove that the hourly rate and number of hours that go into the lodestar calculation are reasonable themselves. Intel Corp. v. Terabyte Int'l, 6 F.3d 614, 623 (9th Cir. 1993).

A court must clearly articulate its reasoning in evaluating the propriety of an hourly rate or hours claimed and in making any adjustments to the hourly rate, hours claimed, or lodestar amount. Ferland v. ...

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