Opinion
Civil Action No. 12-1636 (MAS) (DEA)
09-28-2020
MELISSA RHODES and WILLIAM RHODES, Plaintiffs, v. MARIX SERVICING, LLC, et al., Defendants.
NOT FOR PUBLICATION
MEMORANDUM OPINION
SHIPP , District Judge
This matter comes before the Court upon two motions filed by Plaintiffs Melissa Rhodes and William Rhodes (collectively, "Plaintiffs"). First, is Plaintiffs' Motion for Attorneys' Fees Pursuant to Offer of Judgment of Defendant Zucker Goldberg & Ackerman ("ZGA"). (ECF No. 184.) ZGA opposed (ECF No. 191) and Plaintiffs' replied (ECF No. 194). The Court conducted oral argument on Plaintiff's Motion for Attorneys' Fees on February 7, 2019 (ECF No. 204) Also before the Court is Plaintiffs' Motion to Quash/Compel/Enforce Settlement against Defendants EMC Mortgage Corporation ("EMC") and Residential Credit Solutions, Inc. ("Residential"). (ECF No. 195.), The Court declined to hear oral argument on Plaintiffs' Motion to Enforce Settlement pursuant to Local Civil Rule 78.1. After carefully considering the parties positions, for the reasons set forth below, Plaintiffs' Motion for Attorneys' Fees is granted, as modified, in the amount of $63,680.25, which includes $59,396.88 in attorneys' fees, $2,283.37 in expenses, and $2,000.00 pursuant to the offer of judgment; and Plaintiffs' Motion to Enforce Settlement is denied without prejudice.
The Court hereinafter refers to this motion as "Plaintiffs' Motion for Attorneys' Fees."
The Court hereinafter refers to this motion as "Plaintiffs' Motion to Enforce Settlement."
Marix Servicing, LLC ("Marix") was previously a named Defendant in this matter.
I. BACKGROUND
The facts of this matter are well known to the parties and, therefore, the Court recounts only those facts necessary to resolve the instant motions. On May 31, 2018, pursuant to Rule 68 of the Federal Rules of Civil Procedure, ZGA made an offer of judgment (the "Offer of Judgment") to Plaintiffs stating, in relevant part,
[ZGA] hereby offers judgment to be entered against it and in favor of the Plaintiffs, in full satisfaction of their remaining claims as to ZGA as follows: One Thousand Dollars ($1,000) to Melissa Rhodes and One Thousand Dollars ($1,000) to William Rhodes, plus the costs of the action, together with a reasonable attorney's fee as determined by the Court and any allowable interest.(Pls.' Acceptance of ZGA Offer 2, ECF No. 153.) Plaintiffs accepted ZGA's offer and filed a Notice of Acceptance of the Offer of Judgment on June 12, 2018. (Id. at 1.) On July 18, 2018, Plaintiffs settled their remaining claims with Marix, EMC, and Residential, and placed the terms of their settlement on the record. (ECF No. 182.) That same day, the Court administratively terminated the matter for 60 days, pending consummation of settlement. (ECF No. 183.)
On July 30, 2018, Plaintiffs filed their Motion for Attorneys' Fees. (Pls.' Mot. for Attorneys' Fees, ECF No. 184.) On October 31, 2018, after a series of adjournments, ZGA opposed (ECF No. 191), and on November 12, 2018 Plaintiffs replied (ECF No. 194). On December 28, 2018, Plaintiffs filed their Motion to Enforce Settlement. (Pls.' Mot. to Enforce, ECF No. 195.) On January 8, 2019, Marix filed a cross-motion to enforce settlement against Plaintiffs. (ECF No. 196.) On February 7, 2019, the Court held oral argument on Plaintiffs' Motion for Attorneys' Fees. (ECF No. 204.)
On February 12, 2019, counsel for Marix filed letter correspondence informing the Court of a newly initiated Chapter 11 bankruptcy proceeding affecting Marix (the "Bankruptcy Proceeding"). (ECF No. 204.) In its correspondence, Marix averred that "this proceeding is stayed pursuant to United States Bankruptcy Code, 11 U.S.C. § 362." (Id.) The next day, the Court ordered Plaintiffs and ZGA to e-file correspondence regarding the impact of Marix's bankruptcy on Plaintiffs' Motion for Attorneys' Fees. (ECF No. 205.) On February 22, 2019, the Court administratively terminated this matter pending a resolution of the Bankruptcy Proceeding. (Feb. 22, 2019 Order, ECF No. 212). The Court further ordered that any party seeking to reopen the matter prior to the resolution of the Bankruptcy Proceeding could do so via formal motion. (Id.)
On July 11, 2019, Plaintiffs moved to re-open this matter. (ECF No. 213.) On July 22, 2019, ZGA submitted correspondence noting that, although it "disagreed with many of the characterizations provided by Plaintiffs with respect to [the] underlying facts[,]" it did not oppose the merits of Plaintiffs' motion to reopen. (ECF No. 214.) On July 24, 2019, EMC and Residential e-filed correspondence stating that they "disagree[d] with many of the statements made by Plaintiffs in this Motion" but did not object to the matter being reopened. (ECF No. 215.)
On December 6, 2019, Marix e-filed correspondence informing the Court that the underlying Bankruptcy Proceeding had been resolved and that the confirmed Chapter 11 plan included a "permanent injunction [] that specifically prohibits parties from prosecuting against [Marix] any claim for monetary recovery (including attorney's fees) . . . arising prior to September 30, 2019." (Marix Dec. 6, 2019 Correspondence, ECF No. 217.) Marix averred that "Plaintiffs must immediately dismiss . . . Counts One, Two, Three, Five, Six, and Seven of the Amended Complaint" against Marix (Id. at 2.) Marix further argued that because it was "no longer the servicer of the loan at issue in this action, [it] is unable to grant the requested relief in Count Four of the [Amended] Complaint." (Id.) Marix also requested it be terminated from this matter. (Id.)
On February 28, 2020, the Court granted Plaintiffs' motion to reopen the case, reinstated Plaintiffs' Motions for Attorneys' Fees and to Enforce Settlement, and ordered Plaintiffs to show cause by March 13, 2020 as to why Marix's request to be terminated from the case should not be granted. (Feb. 28, 2020 Order, ECF No. 218.) Plaintiffs did not respond to the Court's Order. On June 15, 2020, the Court, upon review of its docket and upon consideration of Plaintiffs' failure to respond to the Court's February 28, 2020 Order, terminated Marix from the case without prejudice. (ECF No. 219.)
On July 2, 2020, Marix filed a copy of an order from the United States Bankruptcy Court for the Southern District of New York, entitled Order Granting Plan Administrator's Third Omnibus Motion to Enforce Injunctive Provisions of Plan and Confirmation Order. (ECF No. 220.) The order, inter alia, bars Plaintiffs from continuing to maintain and prosecute claims for monetary damages against Marix that arose prior to September 26, 2019. (See generally id.)
II. LEGAL STANDARD
Attorneys' fees and costs "may be awarded to a prevailing party . . . where authorized by statute, court rule or contract." Apple Corps., Ltd. v. Ml Collectors Soc'y, 25 F. Supp. 2d 480, 484 (D.N.J. 1998). "A 'prevailing' plaintiff entitled to a fee award is one who has succeeded on any significant issue in litigation [that] achieves some of the benefit the part[y] sought in bringing the suit." Machado v. Law Offices of Jeffrey H. Ward, No. 14-7401, 2017 WL 2838458, at *1 (D.N.J. June 30, 2017) (citations and internal quotation omitted); see also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
"The party seeking attorney[s'] fees has the burden to prove that its request for attorney[s'] fees is reasonable." Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990) "To meet its burden the fee petitioner must 'submit evidence supporting the hours worked and rates claimed.'" Id. (quoting Hensley, 461 U.S. at 433). "The Supreme Court has held that '[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Washington v. Phila. Cty. Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996) (quoting Hensley, 461 U.S. at 433); see also Rode, 892 F.2d at 1183. "The result of this computation is called the lodestar." Washington, 89 F.3d at 1035.
"Reasonable hourly rates are typically determined based on the market rate in the attorney's community for lawyers of similar expertise and experience. Machado, 2017 WL 2838458, at *2 (citing Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d 694, 712 (3d Cir. 2005), as amended (Nov. 10, 2005)). "The starting point in determining a reasonable hourly rate is the attorney's usual billing rate, but this is not dispositive." Id. (quoting Pub. Int. Research Grp. of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995)). "After a court ascertains a reasonable hourly rate, it must then determine whether the hours that the attorney expended are reasonable." Id. (citing Hensley, 461 U.S. at 433-34). The Court will exclude any hours that "were not reasonably expended" from the fee calculation. Hensley, 461 U.S. at 434 (citation omitted). "Hours are not reasonably expended if they are excessive, redundant, or otherwise unnecessary." Rode, 892 F.2d at 1183. To determine whether the hours expended in this matter are reasonable, "it is necessary that the Court 'go line, by line, by line' through the billing records supporting the fee request." Evans v. Port Auth. of N.Y. & N.J., 273 F.3d 346, 362 (3d Cir. 2001) (emphasis in original)
When the fee petitioner has produced satisfactory evidence for a fee award, the burden shifts to "the party opposing the fee to contest the reasonableness of the hourly rate requested or the reasonableness of the hours expended." Apple Corps. Ltd. v. Int'l Collectors Soc'y, 25 F. Supp. 2d 480, 485 (D.N.J. 1998). "If the party opposing the fee petition meets its burden of proving that an adjustment is necessary, the [C]ourt has wide discretion to adjust the attorneys' fee . . . ." Id. (citation omitted); see also Hensley, 461 U.S. at 433 (noting determining reasonableness of fees is within the trial court's discretion). Indeed, the Court "has wide discretion to adjust the attorneys' fee for a variety of reasons such as inadequate documentation of hours spent, reasonableness of hours expended or duplication of efforts." Apple Corps. Ltd., 25 F. Supp. 2d at 485 (citing Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir. 1983)).
"The Court, however, must be prompted by the opposing party to review specific charges and cannot make any adjustments sua sponte." Machado, 2017 WL 2838458, at *2 (citing Interfaith, 426 F.3d at 711). "The lodestar calculation is presumed reasonable, but the '[C]ourt can adjust the lodestar downward if the lodestar is not reasonable in light of the results obtained.'" Id. (quoting Washington, 89 F.3d at 1035). III. PARTIES' POSITIONS
Because the Court denies Plaintiffs' Motion to Enforce Settlement without prejudice, as discussed in Section IV.G., infra, the Court declines to recount the Plaintiffs' arguments in support of their motion here.
Plaintiffs' Motion for Attorneys' Fees seeks a total award of $141,544.27, which consists of: (1) attorneys' fees in the amount of $102,330.83; (2) a one-third enhancement of fees in the amount of $34,110.28; (3) expenses in the amount of $3,103.16; and (4) $2,000.00 pursuant to the Offer of Judgment. (Pls.' Fees Moving Br. 17-18, ECF No. 184-4.) Plaintiffs request the use of the following hourly rates for the Court's lodestar calculation: (1) William P. Rubley at $300.00 per hour; (2) Scott M. Zauber at $300.00 per hour; (3) John P. Leon at $300.00 per hour; (4) Anthony J. Canale at $250.00 per hour; (5) Michael P. Morrow at $150.00 per hour; and (6) paralegals at $125.00 per hour. (Id. at 10.) Plaintiffs aver that their time records properly document the time expended in the matter, and that their requested hourly rates are reasonable based on the fee schedule established by Community Legal Services of Philadelphia ("CLS"). (Id. at 10-11.) As to their requested expenses, Plaintiffs aver that their request is reasonable and that their request "[has] been appropriately discounted to reflect the share of expenses that is fairly attributable to [ZGA]." (Id. at 12-13.)
Plaintiffs argue that they are entitled to an upward adjustment of the lodestar calculation because "the hourly rates do not adequately reflect market value and because of the exceptionally protracted limitation and unanticipated delays in payment of fees." (Id. at 13.) Plaintiffs contend that their hourly rates were below the CLS guidelines and, accordingly, they were below market value and entitle them to an upward adjustment. (Id. at 14-15.) As to the unexpected delays, Plaintiffs note that this litigation has been pending since March 15, 2012 and had only been scheduled to go to trial on July 25, 2018. (Id. at 16.) Plaintiffs contend that "a major factor in that delay" was ZGA's bankruptcy filing which occurred on August 3, 2015, "after discovery had been completed and a final pretrial conference had been set." (Id.) Plaintiffs also note that ZGA opposed Plaintiffs' previous motion to reopen this case after Plaintiffs were granted relief from the automatic stay imposed by ZGA's bankruptcy, requiring Plaintiffs to incur additional expenses from the subsequent motion practice. (Id. at 16-17.) Plaintiffs, accordingly, request a one-third enhancement of the lodestar amount of fees. (Id. at 17.)
ZGA advances several arguments in opposition. First, ZGA argues the Court should deny Plaintiffs' Motion for Attorneys' Fees because Plaintiffs failed to comply with Local Civil Rule 54.2. (ZGA Opp'n Br. 14, ECF No. 191.) Local Civil Rule 54.2(a) states, in relevant part,
In all actions in which a counsel fee is allowed by the Court or permitted by statute, an attorney seeking compensation for services or reimbursement of necessary expenses shall file within 30 days of the entry of judgment or order, unless extended by the Court, a motion for fees and expenses in accordance with L. Civ. R. 7.1.L. Civ. R. 54.2(a). ZGA contends that, because Plaintiffs accepted the Offer of Judgment on June 12, 2018, they had until July 12, 2018 to seek a fee award. (ZGA Opp'n Br. 14.) Because Plaintiffs' did not file their Motion for Attorneys' Fees until July 30, 2018, ZGA argues that the Motion is untimely and should be denied. (Id.) ZGA similarly argues that the Motion should be denied because the documentation submitted by Plaintiffs is inadequate (Id. at 15.)
ZGA further contends that Plaintiffs "cannot satisfy their heavy burden to establish that the fees incurred were reasonable" and that granting Plaintiffs' Motion for Attorneys' Fees would result in an impermissible "windfall" to Plaintiffs' counsel. (Id. at 13, 15.) As to Plaintiffs' requested enhancement, ZGA argues that Plaintiffs failed to demonstrate "rare" or "exceptional" facts that would permit a fee enhancement. (Id. at 22.) Further, ZGA argues Plaintiffs contributed to the matter's delay, and that Plaintiffs are trying to penalize ZGA for filing for bankruptcy when it was merely seeking to exercise the "legal and statutory rights afforded to it." (Id. at 24.)
Moreover, regarding general billing entries that pertained to all Defendants, Plaintiffs attributed 33.3% of those billing entries to ZGA, which ZGA contends is arbitrary and, at the very least, the share of the entries attributable to ZGA should be reduced to 25% because ZGA was one of four named Defendants. (Id. at 26.)
ZGA also argues Plaintiffs submitted a number of entries related to efforts to educate themselves about specific claims, and many of those billing entries are duplicative, not recoverable to a client, and therefore inappropriate for a fee application. (Id. at 19-22.) ZGA further disputes billing entries for individuals whom Plaintiffs did not reference or describe in their fee application or attendant briefs. (Id. at 20.) Finally, ZGA contends that Plaintiffs are seeking fees for claims on which they were not, or were only marginally, successful. (Id. at 20-21.) Accordingly, ZGA argues that if the Court awards attorneys' fees to Plaintiffs, a reasonable sum would be $9,263.59, which should be further reduced in accordance with the 33% to 25% apportionment ZGA contends is appropriate. (Id. at 18-19.)
In reply, Plaintiffs argue a three-way apportionment of fees is appropriate because two Defendants—EMC and Residential—were represented by common counsel. (Pls.' Fee Reply Br. 1 n.1, ECF No. 194.) Plaintiffs contend that the hours expended, 948.7, are reasonable because this matter was litigated for nearly 90 months and because that number equates to roughly 10.5 hours per month. (Id. at 2.) Plaintiffs note that the figure proposed in ZGA's opposition brief—an award of roughly $9,000 in fees—"would yield a rate of about $9.50 per hour for the 948.7 hours of work performed" and that "[n]o reasonable person could conclude" such a figure was adequate compensation. (Id. at 3.) Plaintiffs further argue that ZGA violated the Fair Debt Collection Practices Act ("FDCPA") in multiple ways when it sent a Notice of Intent to Foreclose to Plaintiffs and that "[b]ut for this litigation," Plaintiffs likely would have lost their home. (Id. at 6-7.)
IV. DISCUSSION
As a preliminary matter, the Court finds that the Offer of Judgment entitles Plaintiffs to reasonable attorneys' fees, Plaintiffs' Motion seeking these fees was timely, and Plaintiffs have provided sufficient detail to support their request for fees.
ZGA contends that, because Plaintiffs accepted the Offer of Judgment on June 12, 2018, they had until July 12, 2018 to seek a fee award and that because Plaintiffs' did not file their Motion for Attorneys' Fees until July 30, 2018 the Motion is untimely and should be denied. (ZGA Opp'n Br. 14.) The Court disagrees. Local Civil Rule 54.2(a) states that "an attorney seeking compensation for services or reimbursement of necessary expenses shall file within 30 days of the entry of judgment or order." L. Civ. R. 54.2(a) (emphasis added). Although the Plaintiffs accepted the Offer of Judgment on June 12, 2018 and filed their acceptance on the docket, the Clerk of the Court never entered judgment and, therefore, the 30-day timer never started to run. Plaintiffs' Motion for Attorneys' Fees is therefore timely.
Finally, ZGA contends that the spreadsheet Plaintiffs submitted in support of their fee application ("Plaintiffs' Spreadsheet") is insufficient to support the requested fee award. (ZGA Opp'n Br. 18-22, 25-26.) Although some entries lack adequate specificity, which the Court addresses below, the Court otherwise finds Plaintiffs' Spreadsheet sufficiently detailed to perform a thorough analysis. (Pls.' Spreadsheet, Ex. A to Pls.' Fees Moving Br., ECF No. 184-2); see, e.g., Avaya, Inc. v. Telecom Labs, No. 06-2490, 2016 WL 223696, at *4 (D.N.J. Jan. 19, 2016) ("[S]ufficiently detailed summaries may be appropriate for fee applications . . . ."); see also Rode, 892 F.2d at 1190 ("A fee petition is required to be specific enough to allow the district court to determine if the hours claimed are unreasonable for the work performed.") (internal quotations omitted).
A. The Hourly Rates Suggested by Plaintiffs Are Reasonable
Plaintiffs have demonstrated that their hourly rates are reasonable, as they are within, or below, the ranges set forth in the CLS fee schedule. "The fee schedule established by Community Legal Services, Inc. ("CLS") 'has been approvingly cited by the Third Circuit as being well developed and has been found . . . to be a fair reflection of the prevailing market rates.'" Maldonado v. Houstoun, 256 F.3d 181, 187 (3d Cir. 2001) (quoting Rainey v. Philadelphia Housing Auth., 832 F.Supp. 127, 129 (E.D. Pa. 1993). The Court, therefore, is satisfied that Plaintiffs' hourly rates are reasonable.
B. Plaintiffs' Erred By Attributing 33.33% of Shared Costs to ZGA
For general billing entries that pertained to all Defendants, Plaintiffs attributed 33.33% of the entries to ZGA. ZGA contends this apportionment is arbitrary, and at the very least, the share of the entries attributable to ZGA should be reduced to 25% because ZGA was one of four named Defendants. (Id. at 26.) The Court agrees. There were four Defendants in this matter, and the Court is not persuaded by Plaintiffs' argument that ZGA should be held accountable for a larger share simply because common counsel represented EMC and Residential. The Court, accordingly, downwardly adjusts all billing entries that attributed 33.33% of the costs to ZGA so that they now attribute 25%. (See generally Court's Spreadsheet.)
The Court's Spreadsheet is appended to the end of this Memorandum Opinion. The formatting and contents of the Court's Spreadsheet are discussed in Section IV.C., infra.
C. The Court Reviews Plaintiffs' Spreadsheet Line-By-Line, Finds Certain Requests Are Not Reasonable, and Accordingly Rejects Specific Entries
The Court further finds Plaintiffs are not entitled to certain entries included in Plaintiffs' Spreadsheet, for the reasons enumerated below. The Court addresses each in turn. In so doing, the Court, in large part, adopts Plaintiffs' Spreadsheet's format in addressing the reasonableness of the hours expended. Plaintiffs' Spreadsheet included the following column headers: (A) Date; (B) Staff; (C) Service Performed; (D) Time; (E) Cost; (F) Fee/Expense; (G) Percentage; and (H) Amount Attributable to ZGA. (Pls.' Spreadsheet 1.) Plaintiffs, however, did not include individualized row numbers or any other unique identifier that could be used to differentiate between various entries. The Court, in generating the Court's Spreadsheet, subsequently converted the provided .pdf document into a Microsoft Excel .xlsx file, and inserted a column to the left of the existing Column A. (See generally Court's Spreadsheet.) In the Court's Spreadsheet, each row of data has a corresponding "Row Number" that acts as a unique identifier. The numerals in the "Row Number" column begin with the first row of data and do not include the column headers provided by Plaintiffs. The references below act as if Plaintiffs presented the data using the following column headings: (A) Row Number; (B) Date; (C) Staff; (D) Service Performed; (E) Time; (F) Cost; (G) Fee/Expense; (H) Percentage; and (I) Amount Attributable to ZGA. (Compare Pls.' Spreadsheet with Court's Spreadsheet.)
1. An Unfiled Motion for Default Judgment
Plaintiffs' Spreadsheet includes a billing entry for preparation of a default judgment. Plaintiffs, however, never filed such a motion, and Plaintiffs' Motion and attendant briefs fail to address why Plaintiffs are entitled to fees for preparing that motion. The Court, therefore, declines to award Plaintiffs the following fees:
| Row# | Date | Staff | Service Performed | Time | Cost | Fee/Expense | % | AmountAttributableto ZGA |
|---|---|---|---|---|---|---|---|---|
| 44 | 7/11/2012 | WPR | Prepare the Default judgments against Marizand default Zucker Goldberg. | 2.5 | $750.00 | Fee | 50.00% | $375.00 |
2. Unidentified Persons
Plaintiffs' application includes billing entries for individuals whom Plaintiffs fail to explain who they are or how they were involved in the underlying litigation. For example, numerous entries reference "counsel in New York" or "Eric Browndorf," but there is no counsel from New York or an Eric Browndorf listed on the docket. These billing entries, therefore, lack proper documentation and specificity for the Court to perform an adequate review. Plaintiffs, accordingly, failed to demonstrate that their charges related to unidentified individuals are reasonable or recoverable. See, e.g., UAW Local 259 Soc. Sec. Dep't v. Metro Auto Ctr., 501 F.3d 283, 291 (3d Cir. 2007) ("In requesting, challenging, and granting attorneys' fees, specificity is critical."). The Court, therefore, declines to award Plaintiffs fees for the following entries associated with unidentified individuals:
That these entries lack specificity is underscored by ZGA having to assume Plaintiffs' actions were to educate themselves. (See ZGA Opp'n Br. 20 ("These entries appear to be with counsel that specializes in FDCPA claims and class actions. However, no New York counsel ever appeared here, nor did Mr. Browndorf. Nonetheless, Plaintiffs seek time for consulting with another attorney presumably to educate themselves.").)
The Court acknowledges that some billing entries include fees for both identified and unidentified individuals. The Court, however, declines to reduce those billing entries because Plaintiffs have not submitted documentation indicating how much time was spent performing each task, and to reduce those awards would require the Court to arbitrarily allot time to each action. See, e.g., United States ex rel. Palmer v. C&D Techs., Inc., 897 F.3d 128, 139 (3d Cir. 2018) (citation omitted) ("[D]istrict Courts, in awarding attorneys' fees, may not reduce an award by a particular percentage or amount (albeit for justifiable reasons) in an arbitrary or indiscriminate fashion.").
| Row# | Date | Staff | Service Performed | Time | Cost | Fee/Expense | % | AmountAttributableto ZGA |
|---|---|---|---|---|---|---|---|---|
| 59 | 9/10/2012 | WPR | E-mails with counsel in New York; review alldocuments for the pre-trial conference in themorning. | 1 | $300.00 | Fee | 33.33% | $100.00 |
| 76 | 10/18/2012 | WPR | Conference call with the Judge; review e-mailfrom NY class action counsel. | 0.4 | $120.00 | Fee | 33.33% | $40.00 |
| 160 | 5/7/2013 | SMZ | Discussion with Eric Browndorf re basicstrategy for mediation. | 0.5 | $150.00 | Fee | 33.33% | $50.00 |
| 164 | 5/7/2013 | WPR | Multiple telephone calls and e-mails withJudge Rosen, Judge Arpert, secretary for JudgeRosen and all parties to the case; telephone callwith co-counsel Eric Browndorf. | 2.2 | $660.00 | Fee | 33.33% | $220.00 |
| 170 | 5/13/2013 | WPR | Prepare e-mail to Eric Browndorf. | 0.2 | $60.00 | Fee | 33.33% | $20.00 |
| 178 | 5/16/2013 | WPR | Conference call with Eric Browndorf; meetwith Scott Zauber. | 0.8 | $240.00 | Fee | 33.33% | $80.00 |
| 202 | 8/19/2013 | WPR | Review the opinion and order on the Motion toCompel; e- mail the same to Browndorf;telephone call with the client. | 1.5 | $450.00 | Fee | 50.00% | $225.00 |
| 229 | 9/27/2013 | SMZ | Conference with Will Rubley re discussionregarding case and conference call with EricBrowndorf. | 0.5 | $150.00 | Fee | 33.33% | $50.00 |
| 233 | 9/30/2013 | WPR | Telephone call with counsel for LPS andreview documents with counsel regarding LPSDefault Solutions; search for LPS DefaultSolutions and claims against LPS and AlEvans. | 1.9 | $570.00 | Fee | 33.33% | $190.00 |
| 236 | 10/1/2013 | WPR | Meeting with Browndorf, Thorton, and Zauber. | 3 | $900.00 | Fee | 33.33% | $300.00 |
| 256 | 11/5/2013 | WPR | Telephone call with LPS Default Solutions in-house counsel regarding the responses to thesubpoenas; pull research on the individualknown as Al Evans at LPS Default Solutions;pull research on subpoena of a non-partyemployee of a non- party for a deposition herein NJ. | 1 | $300.00 | Fee | 33.33% | $100.00 |
| 526 | 12/19/2014 | WPR | Meet with Sidelsky; review the electric billfrom the client; initial review of the Motion forFinancing of the Insurance Premiums. | 0.5 | $150.00 | Fee | 33.33% | $50.00 |
| 620 | 1/12/2017 | WPR | Telephone message for Adler. | 0.1 | $25.00 | Fee | 100.00% | $25.00 |
3. Unsuccessful Motions
Courts are permitted to downwardly adjust a plaintiff's fee application to reflect the plaintiff's limited success. See, e.g., Hensley, 461 U.S. at 436-37. "There is no precise rule or formula," however, for determining whether a fee award is reasonable. Id. at 436. In those circumstances, "[t]he [D]istrict [C]ourt may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The [C]ourt necessarily has discretion in making this equitable judgment." Id. at 436-37. Courts, however, must also consider the "interrelated nature of the lawsuit as a whole." Williams v. Tri-Cty. Growers, Inc., 747 F.2d 121, 137 (3d Cir. 1984).
Here, the Court recognizes the interrelated nature of Plaintiffs' claims, and that "but for this litigation" Plaintiffs would have lost their home. The Court, however, finds that ZGA's involvement in this action was peripheral to the corpus of the litigation, and Plaintiffs were only partially successful overall. In fact, only two of the eight counts in Plaintiffs' Second Amended Complaint pertained to ZGA, and of those two counts, Plaintiffs only obtained an offer of judgment as to the FDCPA claim. The Court, therefore, finds it appropriate to strike billing entries related to issues that were unsuccessful, including: (1) Motion to Withdraw Reference; (2) Motion for Attorneys' Fees, filed before the Honorable Douglas E. Arpert, U.S.M.J. (ECF No. 47); (3) Settlement and Enforcing Settlement; and (4) Summary Judgment. The Court will address each in turn.
i. Motion to Withdraw Reference
Plaintiffs' Spreadsheet includes billing entries for a motion to withdraw a bankruptcy reference that this Court previously found was improperly filed. (See In re Zucker, Goldberg & Ackerman, LLC, No. 15-7466, ECF No. 5 ("The Rhodes Action was never 'referred' to the Bankruptcy Court, and thus, there is nothing for this Court to withdraw reference to. If the relief Plaintiffs seek is that the Rhodes Action be 'reopened' . . . they should file the appropriate motion in the Rhodes Action . . . .").) Because Plaintiffs were unsuccessful (and improperly filed) that motion, the Court declines to award attorneys' fees for the following entries:
| Row# | Date | Staff | Service Performed | Time | Cost | Fee/Expense | % | AmountAttributableto ZGA |
|---|---|---|---|---|---|---|---|---|
| 587 | 8/20/2015 | WPR | Pull research on Motion to Vacate Reference. | 2.5 | $750.00 | Fee | 100.00% | $750.00 |
| 588 | 9/2/2015 | WPR | Continue to research motions to withdraw thereference. | 2.6 | $780.00 | Fee | 100.00% | $780.00 |
| 589 | 9/14/2015 | WPR | Continue to draft the Motion to Withdraw theReference. | 2 | $600.00 | Fee | 100.00% | $600.00 |
| 591 | 9/29/2015 | WPR | [CS] Conduct legal research on the withdraw ofreference from Bankruptcy. | 2 | $400.00 | Fee | 100.00% | $400.00 |
| 592 | 9/30/2015 | WPR | [CS] Prepare motion to withdraw reference. | 4 | $800.00 | Fee | 100.00% | $800.00 |
| 593 | 10/5/2015 | WPR | [CS] Discuss same with Will Rubley. | 0.3 | $60.00 | Fee | 100.00% | $60.00 |
| 594 | 10/5/2015 | WPR | [CS] Conduct additional research on themandatory withdraw of the reference. | 1 | $200.00 | Fee | 100.00% | $200.00 |
| 595 | 10/5/2015 | WPR | [CS] Make necessary corrections and additionsto the memorandum of law in support of themotion. | 3 | $600.00 | Fee | 100.00% | $600.00 |
| 596 | 10/6/2015 | WPR | Review the Motion to withdraw the Reference. | 2.2 | $660.00 | Fee | 100.00% | $660.00 |
| 597 | 10/8/2015 | WPR | [CS] Final review the motion to withdraw.Review citations and shepardize case law.Prepare table of contents and table ofauthorities. | 4.5 | $900.00 | Fee | 100.00% | $900.00 |
| 598 | 10/8/2015 | WPR | Call with the bankruptcy court. | 0.3 | $90.00 | Fee | 100.00% | $90.00 |
| 599 | 10/8/2015 | WPR | Final review of the Motion to Withdraw theReference. | 1.5 | $450.00 | Fee | 100.00% | $450.00 |
| 600 | 10/9/2015 | WPR | [CS] Prepare letter to Judge Shipp enclosingcopy of the motion to withdraw reference.Organize motion and exhibits to send to Judge. | 0.6 | $120.00 | Fee | 100.00% | $120.00 |
| 601 | 10/9/2015 | WPR | Review the rules for service of the Motion toWithdraw the Reference. | 0.4 | $120.00 | Fee | 100.00% | $120.00 |
| 602 | 10/15/2015 | WPR | [CS] Review Zucker's response to Rhodes'motion to withdraw. | 0.2 | $40.00 | Fee | 100.00% | $40.00 |
| 603 | 10/15/2015 | WPR | Review the opposition to the Motion toWithdraw the reference. Pull cases on ôrelatedtoö jurisdiction of the bankruptcy court andprepare the reply. | 2.5 | $750.00 | Fee | 100.00% | $750.00 |
| 604 | 10/16/2015 | WPR | Finalize the reply to the Motion to Withdrawthe reference and file the same. | 1.5 | $450.00 | Fee | 100.00% | $450.00 |
| 606 | 11/23/2015 | WPR | Review the order from the district courtdenying the Motion to Withdraw theReference. | 0.5 | $150.00 | Fee | 100.00% | $150.00 |
| 765 | 10/12/2015 | SMZ | Filing fee for Motion to Withdraw Reference. | FlatExp | $176.00 | Expense | 33.33% | $58.67 |
ii. Attorneys' Fees Motion before Judge Arpert
Plaintiffs' application also includes billing entries for an attorneys' fees motion before Judge Arpert, which Judge Arpert denied. (ECF No. 54.) The Court, therefore, declines to award Plaintiffs attorneys' fees for the following entries:
| Row# | Date | Staff | Service Performed | Time | Cost | Fee/Expense | % | AmountAttributableto ZGA |
|---|---|---|---|---|---|---|---|---|
| 208 | 9/4/2013 | WPR | Begin to prepare the Motion for fees and costs;pull research on the Lodestar Analysis. | 1.7 | $510.00 | Fee | 50.00% | $255.00 |
| 221 | 9/19/2013 | WPR | Pull research on post-petition attorney's fees inbankruptcy and whether they need to beapproved by the bankruptcy court in order to beconsidered due and owing. | 1.5 | $450.00 | Fee | 33.33% | $150.00 |
| 228 | 9/26/2013 | WPR | Review research and prepare the Motion forAttorneys Fees and Costs. | 3.8 | $1,140.00 | Fee | 50.00% | $570.00 |
| 230 | 9/27/2013 | WPR | File the Motion for Fees; e-mails with Saylesregarding the motions. | 0.7 | $210.00 | Fee | 50.00% | $105.00 |
| 234 | 9/30/2013 | WPR | Pull research on post-petition attorneys fees bysecured creditor and violation of dischargeinjunctions; continue to review the notes fromMarix and the e-mails and communicationsfrom Zucker to LPS Default Solutions. | 1.1 | $330.00 | Fee | 33.33% | $110.00 |
iii. Settlement, Mediation, and Enforcing Settlement
The parties' multiple failed settlement attempts greatly contributed to this matter's tortured history. The parties first attended a settlement conference before Judge Arpert on May 15, 2014, which was unsuccessful. (See Docket Entry for May 15, 2014.) Subsequently, on October 8, 2014, the parties attended another settlement conference before the Undersigned that appeared successful, and the Court entered an order dismissing the case without prejudice. (ECF No. 82.)
On November 26, 2014, Plaintiffs filed a Motion to Reopen the Case, which resulted in motion practice related to enforcing the settlement, as well as another round of settlement conferences before the Undersigned. (See Docket Entry for Feb. 18, 2015.) When that settlement conference failed, the Court reopened the matter and reinstated the pending summary judgment motions. (ECF No. 102.) The Court then held another settlement conference on April 4, 2018, and Plaintiffs submitted a Notice of Acceptance of Offer of Judgment by ZGA on June 12, 2018. (ECF No. 153.) Thus, the majority of those settlement attempts were unsuccessful, and the settlement offer Plaintiffs did ultimately accept was for a significantly reduced recovery than they were originally seeking. See, e.g., Berne Corp. v. Gov't of the V.I., No. 2001-141, 2012 U.S. Dist. LEXIS 13128, at *27 (D.V.I. Feb. 3, 2012) (declining to award the plaintiffs attorneys' fees for failed settlement attempts, stating, inter alia "it is not clear whether the [p]laintiffs' participation in these efforts were useful and necessary to secure the final result obtained . . . .").
Plaintiffs' settlement dispute pertained to two other Defendants, but because that settlement "was part of the overall settlement package with all parties" Plaintiffs argued "there c[ould] be no meeting of the minds with the remaining Defendants," which included ZGA. (Pls.' Cross-Motion to Enforce Settlement Opp'n Br. 7, ECF No. 94.)
The Court, accordingly, declines to award attorneys' fees for the following entries:
| Row# | Date | Staff | Service Performed | Time | Cost | Fee/Expense | % | AmountAttributableto ZGA |
|---|---|---|---|---|---|---|---|---|
| 58 | 9/7/2012 | WPR | E-mails with the client and send offer to settleto Zucker. | 0.5 | $150.00 | Fee | 100.00% | $150.00 |
| 152 | 5/1/2013 | WPR | Continue to prepare the mediation statement;e-mails with Judge Rosen's office; send e-mailto client. | 3 | $900.00 | Fee | 33.33% | $300.00 |
| 153 | 5/2/2013 | WPR | Finalize the mediation statement and send thesame with all exhibits to Judge Rosen; reviewthe credit report of the client; send creditreport to all parties; prepare e-mail to counselfor EMC regarding outstanding discovery; e-mail to counsel in NY. | 3.5 | $1,050.00 | Fee | 33.33% | $350.00 |
| 154 | 5/3/2013 | SMZ | Conference with Will Rubley re discussionregarding strategy, mediation, trial counsel andclass action status. | 1.2 | $360.00 | Fee | 33.33% | $120.00 |
| 158 | 5/6/2013 | SMZ | Discussion with Will Rubley on file andpreparation for mediation. | 1.5 | $450.00 | Fee | 33.33% | $150.00 |
| 161 | 5/7/2013 | SMZ | Mediation preparation with Will Rubley anddiscussion with client. | 1.5 | $450.00 | Fee | 33.33% | $150.00 |
| 162 | 5/7/2013 | SMZ | Telephone conference with Will Rubley revarious discussions regarding proceedingforward with mediation and parties notattending. | 0.5 | $150.00 | Fee | 33.33% | $50.00 |
| 163 | 5/7/2013 | WPR | Telephone call with the client to prepare formediation. | 0.5 | $150.00 | Fee | 33.33% | $50.00 |
| 165 | 5/7/2013 | WPR | Pull documents and prepare for the mediation;review all discovery; send credit report to allparties as supplement to answers to discovery. | 1.3 | $390.00 | Fee | 33.33% | $130.00 |
| 166 | 5/8/2013 | SMZ | Multiple telephone conferences with WillRubley re settlement conference discussionswith client and Will at conference. | 0.5 | $150.00 | Fee | 33.33% | $50.00 |
| 333 | 2/21/2014 | SMZ | Conference with Will Rubley re settlementdiscussion with client. | 0.5 | $150.00 | Fee | 33.33% | $50.00 |
| 334 | 2/21/2014 | WPR | Telephone call with the client and then e-mailto all parties concerning settlement. | 0.5 | $150.00 | Fee | 33.33% | $50.00 |
| 346 | 3/2/2014 | WPR | Telephone call with Zauber regarding possiblesettlement. | 0.6 | $180.00 | Fee | 33.33% | $60.00 |
| 347 | 3/3/2014 | SMZ | Telephone conference with Will Rubley resettlement discussion. | 0.5 | $150.00 | Fee | 33.33% | $50.00 |
| 379 | 3/24/2014 | WPR | E-mail all parties regarding conference call;set up the conference call with the court;prepare e-mail to Judge Rosen's office and e-mail all parties regarding mediation; prepare e-mail to the client re mediation. | 0.4 | $120.00 | Fee | 33.33% | $40.00 |
| 423 | 5/8/2014 | WPR | Begin to prepare the settlement memorandum. | 1.5 | $450.00 | Fee | 33.33% | $150.00 |
| 424 | 5/12/2014 | WPR | Finalize and file the confidential settlementmemo with the court. | 3.5 | $1,050.00 | Fee | 33.33% | $350.00 |
| 428 | 5/13/2014 | WPR | Review the billing records in anticipation ofthe settlement conference. | 1 | $300.00 | Fee | 33.33% | $100.00 |
| 431 | 5/15/2014 | SMZ | Travel to and appearance at mediation withJudge Arpert. | 4 | $1,200.00 | Fee | 33.33% | $400.00 |
| 432 | 5/15/2014 | SMZ | Conference with Will Rubley re discussionabout case after mediation/file update. | 0.5 | $150.00 | Fee | 33.33% | $50.00 |
| 433 | 5/15/2014 | SMZ | Preparation for mediation/meeting with WillRubley. | 0.5 | $150.00 | Fee | 33.33% | $50.00 |
| 434 | 5/15/2014 | WPR | Travel to and attend the settlement conferencebefore Judge Arpert. | 4 | $1,200.00 | Fee | 33.33% | $400.00 |
| 435 | 5/15/2014 | WPR | Review the settlement memo and the pleadingsand the summary judgment memos aspreparation for the settlement conference. | 1 | $300.00 | Fee | 33.33% | $100.00 |
| 494 | 9/19/2014 | SMZ | Conference with Will Rubley re strategysession on mediation and going forward. | 0.7 | $210.00 | Fee | 33.33% | $70.00 |
| 496 | 9/29/2014 | WPR | Review the settlement memorandum to JudgeShipp. | 0.5 | $150.00 | Fee | 33.33% | $50.00 |
| 497 | 9/30/2014 | SMZ | Conference with Will Rubley re discussionabout settlement conference and submission. | 0.7 | $210.00 | Fee | 33.33% | $70.00 |
| 498 | 9/30/2014 | WPR | Make changes to the Settlement Agreement. | 0.4 | $120.00 | Fee | 33.33% | $40.00 |
| 499 | 10/1/2014 | JPL | Review and revise letter to judge re settlementconference (history of case and issues etc.) | 0.3 | $90.00 | Fee | 33.33% | $30.00 |
| 500 | 10/1/2014 | WPR | Finalize the settlement letter to Judge Shippand fax the same to the Judge's chambers. | 1 | $300.00 | Fee | 33.33% | $100.00 |
| 502 | 10/7/2014 | WPR | Final preparation for the settlementconference; telephone call with the client. | 2.1 | $630.00 | Fee | 33.33% | $210.00 |
| 503 | 10/8/2014 | WPR | Travel to and attend the Settlement Conferencewith Judge Shipp. | 7.5 | $2,250.00 | Fee | 33.33% | $750.00 |
| 504 | 10/10/2014 | WPR | Begin to prepare the settlement documents. | 1.8 | $540.00 | Fee | 33.33% | $180.00 |
| 505 | 10/15/2014 | WPR | Continue to prepare the settlement documents;e-mails to and from the client. | 1.2 | $360.00 | Fee | 33.33% | $120.00 |
| 507 | 10/27/2014 | WPR | Continue to prepare the settlement agreements. | 0.8 | $240.00 | Fee | 33.33% | $80.00 |
| 508 | 10/28/2014 | WPR | Continue to prepare the settlement agreements. | 1.2 | $360.00 | Fee | 33.33% | $120.00 |
| 509 | 11/3/2014 | WPR | Continue drafting the settlement agreements;e-mail with Kelner. | 2.5 | $750.00 | Fee | 33.33% | $250.00 |
| 510 | 11/4/2014 | WPR | Finalize the settlement agreements and sendthe same to all parties. | 3.6 | $1,080.00 | Fee | 33.33% | $360.00 |
| 518 | 11/25/2014 | WPR | [CS] Conduct legal research on motion toenforce settlement; conduct legal research onmotion to reopen case after an Orderdismissing the action without prejudice wasentered by the court; prepare Motion toReopen Case. | 4.5 | $900.00 | Fee | 33.33% | $300.00 |
| 525 | 12/19/2014 | WPR | Initial review of the Cross Motion to EnforceSettlement. | 1 | $300.00 | Fee | 33.33% | $100.00 |
| 527 | 12/22/2014 | WPR | Pull research on the Cross Motion to ApproveSettlement. | 1.3 | $390.00 | Fee | 33.33% | $130.00 |
| 528 | 1/3/2015 | WPR | Pull research on the Motion to EnforceSettlement. | 2.5 | $750.00 | Fee | 33.33% | $250.00 |
| 529 | 1/5/2015 | WPR | Continue to draft the response to the crossmotion to enforce settlement. | 3.5 | $1,050.00 | Fee | 33.33% | $350.00 |
| 530 | 1/6/2015 | WPR | Continue to pull research on the settlement ofcertain claims against certain defendants whenthe claims are co-dependent on non-settlingclaims. | 2.2 | $660.00 | Fee | 33.33% | $220.00 |
| 532 | 1/6/2015 | WPR | Review the Motion to Enforce Settlement byZucker. | 1.9 | $570.00 | Fee | 100.00% | $570.00 |
| 533 | 1/7/2015 | WPR | Continue to research motions to approvesettlement and to prepare the opposition to thesame. | 4.5 | $1,350.00 | Fee | 33.33% | $450.00 |
| 534 | 1/8/2015 | WPR | Continue to draft opposition to the Motions toEnforce Settlement. | 1.3 | $390.00 | Fee | 33.33% | $130.00 |
| 535 | 1/9/2015 | WPR | Continue to draft the Response to the Motionto Enforce Settlements. | 2.6 | $780.00 | Fee | 33.33% | $260.00 |
| 548 | 2/16/2015 | WPR | Continue research on the empty chair defense;draft letter to Judge Shipp regarding settlementconference. | 1.8 | $540.00 | Fee | 33.33% | $180.00 |
| 550 | 2/18/2015 | WPR | [CS] Telephone conference with Will Rubleyto discuss terms of settlement with Marix andZucker. | 0.1 | $20.00 | Fee | 50.00% | $10.00 |
| 552 | 2/18/2015 | SMZ | Travel to and appearance at settlementconference. | 3 | $900.00 | Fee | 33.33% | $300.00 |
| 554 | 2/18/2015 | WPR | Travel to and attend the settlement conferencebefore Judge Shipp. | 4.1 | $1,230.00 | Fee | 33.33% | $410.00 |
| 555 | 2/22/2015 | WPR | Begin to prepare the responses to the Motionsto Enforce Settlement. | 1.8 | $540.00 | Fee | 33.33% | $180.00 |
| 556 | 2/25/2015 | WPR | Review outstanding discovery from EMC andResidential and review status of the case inlight of the failed settlement. | 2.4 | $720.00 | Fee | 33.33% | $240.00 |
| 557 | 2/27/2015 | WPR | Continue to draft the opposition to the Motionto Enforce Settlement. | 2.2 | $660.00 | Fee | 33.33% | $220.00 |
| 558 | 2/28/2015 | WPR | Continue to draft the opposition to the crossmotions to settle or to enforce settlement. | 2.8 | $840.00 | Fee | 33.33% | $280.00 |
| 559 | 3/2/2015 | WPR | Continue to draft the Opposition to the threeMotions to Enforce Settlement. | 3.5 | $1,050.00 | Fee | 33.33% | $350.00 |
| 560 | 3/3/2015 | WPR | Finalize the opposition to the three crossmotions to enforce settlement and file thesame; send a courtesy copy to Judge Shipp. | 4.6 | $1,380.00 | Fee | 33.33% | $460.00 |
iv. Summary Judgment
On March 20, 2018, the Court addressed the parties' competing dispositive motions, which included: (1) Plaintiffs' Motion for Partial Summary Judgment, (ECF No. 59); (2) ZGA's Cross-Motion to Strike Portions of Plaintiffs' Motion for Summary Judgment, (ECF No. 76); (3) EMC and Residential's Motion for Summary Judgment, (ECF No. 58); and (4) ZGA's Motion for Summary Judgment, (ECF No. 60). (Mar. 20, 2018 Op., ECF No. 132.) In its Memorandum Opinion, the Court denied Plaintiffs' Motion for Partial Summary Judgment. (Id. at 8.) The Court also denied [ZGA's] cross-motion because it would be "too drastic a remedy . . . . " (Id. at 12.) The Court noted, however, that "Plaintiffs should have supplemented their discovery responses during the course of discovery," but after balancing the parties' interests, allowed Plaintiffs' claims to remain. (Id.) The Court further granted in part and denied in part ZGA's Motion for Summary Judgment. (Id. at 15-20.)
Here, the Court finds Plaintiffs erred in including entries pertaining to their unsuccessful Motion for Summary Judgment. Additionally, the Court finds Plaintiffs' entries pertaining to opposing Defendants' summary judgment motions lack specificity as the Court had four motions before it, but most of Plaintiffs' entries fail to indicate specifically which motion Plaintiffs were addressing. The Court, therefore, is unable to perform an adequate analysis as to whether these billing entries are reasonable.
Plaintiffs include a billing entry for February 21, 2018, stating "Review all summary judgment filings and all responses . . . ." (Pls.' Spreadsheet 29.) Because Plaintiffs explicitly indicated that the work performed related to "all" Defendants, the Court awards Plaintiffs twenty-five percent of that billing entry, totaling $487.50. The Court similarly permits Plaintiffs to recover 25% of the billing entries for rows 657 and 661. (See Court's Spreadsheet.)
The Court, accordingly, denies Plaintiffs attorneys' fees for the following entries:
| Row# | Date | Staff | Service Performed | Time | Cost | Fee/Expense | % | AmountAttributableto ZGA |
|---|---|---|---|---|---|---|---|---|
| 352 | 3/5/2014 | WPR | Begin to prepare the summary judgmentmotion; begin to review the discovery from allparties for the motion; e-mail form Sayles ande-mail to Tabakin. | 2 | $600.00 | Fee | 33.33% | $200.00 |
| 355 | 3/6/2014 | WPR | Continue to prepare summary judgment motion. | 3 | $900.00 | Fee | 33.33% | $300.00 |
| 356 | 3/7/2014 | WPR | Continue to review the file and prepare for thesummary judgment motion. | 3.5 | $1,050.00 | Fee | 33.33% | $350.00 |
| 357 | 3/10/2014 | WPR | Continue to review discovery and to prepare thesummary judgment motion. | 3 | $900.00 | Fee | 33.33% | $300.00 |
| 363 | 3/12/2014 | WPR | Continue to prepare the summary judgmentmotion. | 6.5 | $1,950.00 | Fee | 33.33% | $650.00 |
| 364 | 3/13/2014 | WPR | Continue to prepare the summary judgmentmotion. | 10.5 | $3,150.00 | Fee | 33.33% | $1,050.00 |
| 365 | 3/14/2014 | WPR | Continue to prepare the summary judgmentmotion; finalize the motion and file. | 10.4 | $3,120.00 | Fee | 33.33% | $1,040.00 |
| 376 | 3/21/2014 | WPR | Telephone call with the client; review thesummary judgment motions and begin to putdown an outline of a response. | 2.5 | $750.00 | Fee | 33.33% | $250.00 |
| 377 | 3/21/2014 | WPR | Review the Motion to Extend Time and beginto prepare a response. | 0.8 | $240.00 | Fee | 33.33% | $80.00 |
| 387 | 3/26/2014 | WPR | Continue to pull cases for the opposition to thesummary judgment motions of Defendants. | 3 | $900.00 | Fee | 33.33% | $300.00 |
| 399 | 4/7/2014 | WPR | Continue to prepare the opposition to theMotions for Summary Judgment. | 2.5 | $750.00 | Fee | 33.33% | $250.00 |
| 403 | 4/9/2014 | WPR | Continue to prepare opposition to the Motionsfor Summary Judgment. | 2.2 | $660.00 | Fee | 33.33% | $220.00 |
| 410 | 4/27/2014 | WPR | Continue to pull research on the opposition tothe summary judgment motions filed by Zuckerand EMC/Residential. | 2.5 | $750.00 | Fee | 50.00% | $375.00 |
| 416 | 5/1/2014 | WPR | Continue to prepare the opposition to theSummary Judgment Motions. | 4.8 | $1,440.00 | Fee | 33.33% | $480.00 |
| 418 | 5/2/2014 | WPR | E-mails and telephone calls with all counsel andwith the court regarding the return dates of thesummary judgment motions. | 0.6 | $180.00 | Fee | 33.33% | $60.00 |
| 426 | 5/13/2014 | WPR | Organize the summary judgment motions. | 0.3 | $90.00 | Fee | 33.33% | $30.00 |
| 429 | 5/13/2014 | WPR | Continue to prepare the opposition to theMotions for Summary Judgment; telephonecalls and e-mails with the client regarding thepayment history. | 3 | $900.00 | Fee | 33.33% | $300.00 |
| 436 | 5/16/2014 | WPR | Continue to prepare opposition to the summaryjudgment motions; pull research on the burdenof proof for payment history under RESPA andthe FDCPA. | 2.5 | $750.00 | Fee | 33.33% | $250.00 |
| 440 | 5/22/2014 | WPR | Continue to prepare the opposition to theMotions for Summary Judgment. | 3.5 | $1,050.00 | Fee | 33.33% | $350.00 |
| 441 | 5/27/2014 | WPR | Continue to prepare the opposition to theMotions for Summary Judgment. | 4.2 | $1,260.00 | Fee | 33.33% | $420.00 |
| 443 | 5/28/2014 | WPR | Continue to prepare the opposition to themotions for summary judgment. | 2.6 | $780.00 | Fee | 33.33% | $260.00 |
| 449 | 6/2/2014 | WPR | Continue to prepare the oppositions to thesummary judgment motions. | 2.5 | $750.00 | Fee | 33.33% | $250.00 |
| 451 | 6/5/2014 | WPR | Continue to prepare the opposition to theMotions for Summary Judgment. | 2.8 | $840.00 | Fee | 33.33% | $280.00 |
| 452 | 6/9/2014 | WPR | Continue to draft the opposition to the summaryjudgment motions. | 2.4 | $720.00 | Fee | 33.33% | $240.00 |
| 456 | 6/10/2014 | WPR | Continue to prepare the opposition to thesummary judgment motion. | 2.5 | $750.00 | Fee | 33.33% | $250.00 |
| 460 | 6/15/2014 | WPR | Continue to research and draft responses tosummary judgment motions. | 5.5 | $1,650.00 | Fee | 33.33% | $550.00 |
| 462 | 6/17/2014 | WPR | Read all oppositions to Plaintiff's Motion forSummary Judgment and begin to prepareoutline for the reply. | 3.2 | $960.00 | Fee | 33.33% | $320.00 |
| 464 | 6/19/2014 | WPR | Continue to research the issues raised in allthree responses to Plantiff's Motion forSummary Judgment; begin to prepare the reply. | 2.8 | $840.00 | Fee | 33.33% | $280.00 |
| 465 | 6/20/2014 | WPR | Continue to draft the reply memorandum oflaw. | 3.4 | $1,020.00 | Fee | 33.33% | $340.00 |
| 466 | 6/21/2014 | WPR | Continue to prepare the reply memorandum oflaw. | 5.5 | $1,650.00 | Fee | 33.33% | $550.00 |
| 467 | 6/22/2014 | WPR | Continue to prepare the reply memorandum oflaw and pull research on the obligations of thePlaintiff to amend pleadings and to amendanswers to discovery; draft reply and send thesame for review. | 6 | $1,800.00 | Fee | 33.33% | $600.00 |
| 468 | 6/23/2014 | WPR | Finalize the Reply Memorandum of Law andthe Certification and Exhibits; file the same. | 2.8 | $840.00 | Fee | 33.33% | $280.00 |
| 501 | 10/7/2014 | SMZ | Review of complaint and summary judgmentmotion repreparation for settlement discussions. | 0.5 | $150.00 | Fee | 33.33% | $50.00 |
| 566 | 5/7/2015 | WPR | Review the court order requesting oralargument. Pull motions and all replies to theMotion and pull the summary judgmentmotions and begin to review. | 0.9 | $270.00 | Fee | 33.33% | $90.00 |
| 569 | 5/14/2015 | WPR | Continue to prepare for the oral arguments onthe Motion to Reopen and Motions to EnforceSettlement. Review the summary judgmentmotions. | 2.1 | $630.00 | Fee | 33.33% | $210.00 |
| 573 | 5/19/2015 | WPR | Final prep for the hearing. Review the pendingmotions and the motions for summaryjudgment. | 1.4 | $420.00 | Fee | 33.33% | $140.00 |
| 647 | 9/6/2017 | WPR | Review the Henson v. Santander decision. | 1.1 | $275.00 | Fee | 33.33% | $91.67 |
| 654 | 2/19/2018 | WPR | Pull summary judgment motions and reviewdocuments. | 2 | $700.00 | Fee | 33.33% | $233.33 |
| 656 | 2/19/2018 | WPR | Pull summary judgment motions and reviewdocuments. | 2 | $500.00 | Fee | 33.33% | $166.67 |
| 658 | 2/21/2018 | WPR | Review all summary judgment filings and allresponses. Prepare outline for argument.Review the Henson and Beard decisions andpull the legislative history of the FDCPA.Review case law and statutes cited in theextensive briefs. | 7.8 | $1,950.00 | Fee | 33.33% | $650.00 |
| 660 | 2/22/2018 | WPR | Final prep for oral argument on pendingsummary judgment motions. | 2 | $500.00 | Fee | 33.33% | $166.67 |
D. Summary of the Struck Entries and the Final Lodestar Calculation
In total, the Court struck 136 fee entries from Plaintiffs' Spreadsheet. The remaining fee entries, adjusted to the 25% split where appropriate, total $59,396.88. (See Court's Spreadsheet, Row 772.) The Court, accordingly, awards Plaintiffs $59,396.88 in attorneys' fees.
E. One-Third Enhancement
Finally, the Court denies Plaintiffs' request for a one-third fee enhancement. "[T]here is a 'strong presumption' that the lodestar figure is reasonable . . . ." Perdue, 559 U.S. at 554. Plaintiffs have the burden of proving an enhancement is necessary. Id. at 553. Plaintiffs must show "extraordinary circumstances" were present in order to overcome the presumption of reasonableness. Id. at 546.
Here, the Court finds Plaintiffs have failed to establish that extraordinary circumstances were present. Namely, the Court finds unpersuasive Plaintiffs' assertion that because they chose to bill their clients at a rate less than the market value, that ZGA should be accountable for a fee enhancement. Further, ZGA is legally entitled to pursue bankruptcy, and Plaintiffs failed to demonstrate that ZGA's pursuit of that relief was dilatory or in bad faith. The Court, accordingly, denies Plaintiffs' request for a one-third fee enhancement.
F. Expenses and Offer of Judgment
ZGA does not dispute Plaintiffs' request for $2,000.00, in accordance with the Offer of Judgment. (See generally ZGA Opp'n Br.) Additionally, the Court finds Plaintiffs' request for expenses reasonable, with the exception of expenses struck in the tables above and subject to the aforementioned 33.33% to 25% reduction. The Court, accordingly, awards Plaintiffs $2,000.00 pursuant to the Offer of Judgment, and $2,283.37 in expenses.
G. The Court Denies Plaintiffs' Motion to Enforce Settlement Without Prejudice
On December 28, 2018, Plaintiffs filed a Motion to Enforce Settlement, seeking an Order enforcing settlement terms against EMC and Residential. (See generally Pls.' Mot. to Enforce Br., ECF No. 195-1.) On January 8, 2019, Marix filed a Cross-Motion to Enforce Settlement against Plaintiffs. (ECF No. 196.) On the same day, counsel for EMC and Residential e-filed letter correspondence with the Court requesting a two-week adjournment of the return date for Plaintiffs' Motion, which was granted by Judge Arpert. (ECF Nos. 197, 198.) On January 29, 2019, counsel for EMC and Residential requested a further two-week adjournment, which was granted by the Court. (ECF Nos. 200, 201.)
On February 13, 2019, counsel for EMC and Residential requested a further adjournment of Plaintiffs' Motion to Enforce Settlement. (EMC Feb. 13, 2019 Correspondence, ECF No. 207.) In their correspondence, counsel for EMC and Residential wrote, in relevant part,
[Plaintiffs' Motion to Enforce Settlement and Marix's Cross-Motion] have been adjourned previously due to the fact that Plaintiffs were considering a settlement proposal from Rushmore, the current servicer of their EMC Mortgage. Since Plaintiffs have
still not responded to Rushmore's proposal, [counsel for EMC and Residential] requested a further adjournment of the Motion to Enforce Settlement from Plaintiffs' counsel which was refused by an email which advised of Marix's [b]ankruptcy filing. If the Court has determined the automatic stay does not apply, [counsel for EMC and Residential] is requesting an additional two (2) weeks to file opposition to [Plaintiffs' Motion to Enforce Settlement].(Id.) On February 17, 2019, the Court issued an Order, stating that "[t]he Court is in receipt of Defendant EMC Mortgage Corporation's correspondence notifying the Court of its February 19, 2019 deadline to file opposition to Plaintiffs' Motion to Enforce Settlement. (ECF No. 207.) If required, the Court will reset the briefing schedule after it considers the pending request for a stay." (ECF No. 208.) On February 22, 2019, the Court administratively terminated this matter pending the resolution of the Bankruptcy Proceeding and Ordered that "[c]ounsel shall e-file correspondence within five days of resolution of the bankruptcy proceedings." (ECF No. 212.) On July 11, 2019 Plaintiffs sought to re-open this matter, prior to the resolution of the Bankruptcy Proceeding. (ECF No. 213.) On February 28, 2020, the Court granted Plaintiffs' request and also Ordered Plaintiffs to show cause by March 13, 2020 as to why the Court should not grant Marix's request to be terminated from the case. (ECF No. 218.) The Court further stated that "[u]pon receipt of Plaintiffs' brief, the Court shall set a briefing schedule for the reinstated motions." (Id.) Plaintiffs' never responded to or acknowledged the Court's Order. Indeed, Plaintiffs have made no filings since July 11, 2019. It is unclear to the Court, therefore, whether a live controversy still exists such that Plaintiffs' Motion to Enforce Settlement is ripe for determination. For those reasons, the Court denies Plaintiffs' Motion to Enforce Settlement without prejudice. Should Plaintiffs still seek relief, they may file or re-file an appropriate motion.
V. CONCLUSION
For the reasons set forth above, and for other good cause shown, Plaintiffs' Motion for Attorneys' Fees is granted, as modified. The Court awards Plaintiffs $59,396.88 in attorneys' fees, $2,283.37 in expenses, and $2,000.00 pursuant to the Offer of Judgment, for a total award of $63,680.25. Plaintiffs' Motion to Enforce Settlement is denied without prejudice. The Court will enter an Order consistent with this Memorandum Opinion.
s/ Michael A. Shipp
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE Dated: September 28, 2020
Image materials not available for display.