United States District Court, E.D. North Carolina, Southern Division
SHARON SOUTHWOOD, for herself and all others similarly situated, Plaintiffs,
CCDN, LLC, a Nevada limited liability company; R.K. LOCK & ASSOCIATES, an Illinois general partnership d/b/a Credit Collections Defense Network or CCDN; ROBERT K. LOCK, JR., ESQ.; COLLEEN LOCK; and PHILIP M. MANGER, ESQ., Defendants. CHRIS TAYLOR; WILLIAM G. HARRISON, SR.; LINDA SHERYL LUCAS; CATHY HORTON HUNT; SHARON SOUTHWOOD; and DORMAN and BRENDA BEASLEY, for themselves and all others similarly situated, Plaintiffs,
CCDN, LLC; LEGAL DEBT CURE, LLC, a Nevada limited liability company; BARRISTER LEGAL SERVICES, P.C.; DEBT JURISPRUDENCE, INC.; AEGIS CORPORATION; RICHARD JUDE WASIK; RODNEY EMIL BRISCO; M. DAVID KRAMER; MARCIA M. MURPHY; and PHILIP M. MANGER, Defendants.
EARL BRITT SENIOR U.S. DISTRICT JUDGE
the court is the motion for attorney's fees of Sharon
Southwood, Chris Taylor, William G. Harrison, Cathy Horton
Hunt, and Dorman and Brenda Beasley (collectively,
“plaintiffs”) pursuant to the Racketeer and
Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1964(c), the Credit Repair Organizations Act
(“CROA”), 15 U.S.C. § 1679g(a)(3), and the
North Carolina Unfair and Deceptive Trade Practices Act
(“UDTPA”), N.C. Gen. Stat. § 75-16.1. (DE #
relevant factual allegations and procedural history are set
forth in prior court orders and a memorandum and
recommendation. (See, e.g., DE # 120.) The court
summarizes here only the background essential to the
resolution of the pending motion. This consolidated action
was brought in 2009 against, inter alia, CCDN, LLC
(“CCDN”), R.K. Lock & Associates, Aegis
Corporation, Robert K. Lock, Jr., Colleen Lock, and Philip M.
Manger (collectively, “defendants”). Plaintiffs
alleged defendants engaged in fraudulent debt invalidation
schemes that purported to eliminate the debt of CCDN's
customers and restore their credit ratings. As alleged by
plaintiffs, defendants instructed plaintiffs to stop repaying
credit card debt and claimed in so doing, debt collectors
would undertake actions in violation of the Fair Debt
Collection Practices Act (“FDCPA”). The scheme
falsely promoted the idea that simply filing lawsuits based
on FDCPA violations allowed customers to erase their debts
and win court-awarded damages from debt collectors.
April 2016, Senior United States District Judge James C. Fox
found plaintiffs sufficiently pled federal and state claims
against defendants, including claims under RICO, the CROA and
the UDTPA, and concluded plaintiffs were entitled to default
judgment. (DE # 121.) Judge Fox reserved entering judgment,
however, pending submission of a Notice of Election of Remedy
by plaintiffs Southwood, Taylor, Harrison, and Hunt.
(See DE # 122.) On 26 September 2016, judgment in
favor of plaintiffs was entered against defendants for
damages and litigation costs, including reasonable
attorney's fees in an amount to be determined upon
submission of proper documentation. (DE # 124.) On 26 October
2016, plaintiffs filed the instant motion.
request an attorney's fee award totaling $78, 600 - $44,
400 in Case. No. 7:09-CV-81-BR (the “Southwood
Action”) and $34, 200 in Case No. 7:09-CV-183-BR (the
“Taylor Action”). The verified motion
reflects that counsel, Christopher Livingston
(“Livingston”), expended 222 hours in the
Southwood Action and 171 hours in the
Taylor Action, for a total of 393 hours at a billing
rate of $200.
the CROA, RICO and the UDTPA, a successful plaintiff is
entitled to “reasonable” attorney's fees.
See 15 U.S.C. § 1679g(a)(3); 18 U.S.C. §
1964(c); N.C. Gen. Stat.§ 75-16.1. The determination of
a reasonable attorney's fee award involves a three-step
process.McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir.
2013), as amended (Jan. 23, 2014). First, the court
calculates the lodestar amount (reasonable hourly rate
multiplied by hours reasonably expended).Id. In
making the lodestar determination, the court “appl[ies]
the Johnson/Barber factors.” Grissom v.
The Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008)
(citing Johnson v. Ga. Highway Express,
Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), and
Barber v. Kimbrell's, Inc., 577 F.2d 216, 226
(4th Cir. 1978)). The Johnson/Barber factors are:
(1) [t]he time and labor expended; (2) the novelty and
difficulty of the questions raised; (3) the skill required to
properly perform the legal services rendered; (4)the
attorney's opportunity costs in pressing the instant
litigation; (5) the customary fee for like work; (6) the
attorney's expectations at the outset of the litigation;
(7) the time limitations imposed by the client or
circumstances; (8) the amount in controversy and the results
obtained; (9) the experience, reputation, and ability of the
attorney; (10) the undesirability of the case within the
legal community in which the suit arose; (11) the nature and
length of the professional relationship between attorney and
client; and (12) attorneys' fees awards in similar cases.
McAfee, 738 F.3d at 88 n.5 (citation omitted). After
calculating the lodestar figure, the court must then subtract
fees for time spent on any unsuccessful claims unrelated to
successful claims. Id. at 88. Finally, the court
awards some percentage of the remaining amount, depending on
the degree of success enjoyed by the plaintiff. Id.
determine the reasonableness of the hourly rate claimed, the
court looks to “the prevailing market rates in the
relevant community, ” McAfee, 738 F.3d at 91
(internal quotation marks and citation omitted), for similar
work performed by attorneys of “reasonably comparable
skill, experience, and reputation, ” Blum v.
Stenson, 465 U.S. 866, 895 n.11 (1984). “[T]he
burden rests with the fee applicant to establish the
reasonableness of a requested rate.” Grissom,
549 F.3d at 321. The documentation filed in support of the
motion includes Livingston's resume outlining his
background and qualifications, including fourteen years of
experience in consumer advocacy. (DE # 129, at 10.) It also
includes an affidavit of attorney Henry Clifton Hester
wherein he attests to his familiarity with Livingston's
legal skills and to the reasonableness of Livingston's
billing rate in the relevant market. (DE # 129-1.) The court
finds Livingston's billing rate is reasonable.
court carefully reviewed the billing entries in this case.
Plaintiffs' numerous federal and state law claims
revolved around a similar set of facts, allegations and
evidence; thus, no entries exist for unrelated claims.
Nevertheless, the court finds a reduction of total billable
hours is warranted based on other grounds. First, some of the
entries represent duplicative work. See Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983) (stating a court
should exclude hours that are “excessive, redundant, or
otherwise unnecessary”). In particular, the numerous
filings in the Southwood Action were substantively
similar to those in the Taylor Action, including the
complaints, the responses to motions to dismiss, and the
motions for class certification. Also, some of the entries in
the Southwood Action concern vague tasks, including
60 hours attributed to “voluminous exhibits and memos
for receivership” and eight hours attributed in part to
“additional research.” (Mot., DE # 127, at 2.)
Finally, in the Taylor Action, the fifty and forty
hours attributed to the “complaint” and the
“amended complaint, ” respectively, are excessive
and unnecessary. Numerous paragraphs in the 127-page
complaint and in the 158-page amended complaint constitute
legal conclusions or arguments as opposed to factual
allegations. Thus, the court finds a fifteen percent
reduction of Livingston's billable hours is appropriate.
See Fox v. Vice, 563 U.S. 826, 838 (2011) (stating
“trial courts may take into account their overall sense
of a suit, and may use estimates in calculating and
allocating an attorney's time”). Accordingly, the
court reduces Livingston's entries in the
Southwood Action by 33 hours, from 222 hours to 189
hours, and in the Taylor Action by 26 hours, from
171 to 145 hours, for a total of 334 billable hours.
approved rate of $200 an hour, Livingston's reasonable
and compensable entries total $66, 800 ($37, 800 in the
Southwood Action; $29, 000 in the Taylor
Action). In reaching this figure, the court considered the
time and labor expended, the difficulty of the questions
raised, the skill required, the amount in controversy, the
results obtained and the undesirability of the case within
the legal community in which the suit arose. The other
Johnson/Barber factors are not particularly relevant
in this case.