RAMONES

v.

EXPERIAN INFORMATION SOLUTIONS, LLC

ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND MOTION FOR COSTS

This matter is before the Court on Plaintiff’s Verified Motion seeking attorney’s fees [DE 168] and Motion for Costs [DE 160].1 Having considered the fully briefed motions and the record, for the reasons discussed below, Plaintiff’s Motions are granted, in part, and denied, in part. Plaintiff is awarded $206,424.05 in attorney’s fees and $5,967.17 in costs, for a total award of $212,391.22 in fees and costs.

I. Background

Plaintiff Francisco Javier Perez Ramones’ (“Ramones”) sued Defendant AR Resources, (“ARR”) for incorrectly reporting medical debts on Plaintiff’s credit reports pursuant to the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq.,

voluntary reduction from the $241,747.00 total attorney’s fees, in order to account for any excessive, duplicative, redundant or otherwise unnecessary hours [DE 168 at 15]. Defendant does not contest Plaintiff’s entitlement to attorney fees as an FRCA prevailing party and does not challenge the hourly rate of Larry Smith,

$8619.50 for work performed related to other defendants;²) $23,611.33 for work block billed as to all defendants;³) $10,476.50 for Attorney Courtney Weiner; and,⁴) a 25% across the board cut for excessive hours billed in a “straight-forward” FRCA case. In sum, Defendant requests that Plaintiff’s attorney’s fee be reduced to $131,148.72, an $86,423.58 difference than the amount requested by Plaintiff. As discussed in detail below, Plaintiff is entitled to the bulk of the requested attorney’s fees, with adjustments made for Courtney Weiner’s hourly rate, and reductions for fees incurred for work performed related to Defendants TransUnion and Experian.

B. The Lodestar Calculation

Plaintiff, as a prevailing FCRA party, is entitled to a reasonable attorney’s fee award. 15 U.S.C. §§ 1681n(a)(3).4 As described below, the Court has applied the “lodestar” method and considered the Johnson factors to determine reasonable

(a) In general Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of-- . . .

(3) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court. attorney's fees in this action. Norman v. Hous. Auth. of Montgomery, 836 F. 2d 1292, 1299-1302 (11th Cir. 1988); Bivins v. Wrap It Up, Inc., 548 F. 3d 1348, 1350 (11th Cir. 2008).5

i) Reasonable Hourly Rate The fee applicant bears the burden of demonstrating that the rates charged are reasonable in the relevant legal community. Norman, 836 F. 2d at 1299. However, the Court is deemed an expert on the issue of attorneys' fees and rates and “may consider its own knowledge and experience concerning reasonable and proper fees.” Id. (citation omitted). “A reasonable rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman, 836 F. 2d at 1299 (citation omitted). The relevant market is “the place where the case is filed.” Am. Civil

The Johnson factors include:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and
(12) awards in similar cases.

Bivins, at 1350 n. 2 (citation omitted). Liberties Union of Ga. v. Barnes, 168 F. 3d 423, 427 (11th Cir. 1999) (internal quotation marks and citation omitted). In consumer litigation actions in this district, based on their relevant experience, attorneys have received awards between $400.00 and $600.00 an hour. See, e.g., Gonzalez v. Dynamic Recovery Solutions, LLC, Nos. 14-24502, 14-20933, 2015 WL 738329, at *4 (S.D. Fla. Feb. 23, 2015) (Bloom, J.) (finding that an hourly rate of $400 to be reasonable in an FDCPA case); Fresco v. Auto. Dirs., No. 03- 61063, 2009 WL 9054828, at *7-8 (S.D. Fla. Jan. 20, 2009) (Martinez, J.) (rates ranging from $400 for associates to $600 for a senior partner were reasonable in a fee-shifting case under the Driver's Privacy Protection Act). David Marco, Larry Smith & Lauren Pozna Plaintiff seeks a $550.00 hourly rate for David Marco and Larry Smith, and a $300.00 hourly rate for Lauren Pozna. Plaintiff submitted declarations or affidavits from each attorney in support of the requested hourly rates.⁶ Defendant does not challenge those rates.

$300.00 hourly rate for Ms. Pozna to be reasonable.⁷ Courtney Weiner Defendant objects to Attorney Courtney Weiner’s $435.00 an hour request because she is not admitted to practice in this Court and never entered a formal appearance as Plaintiff’s counsel. Defendant submits that Ms. Weiner’s houly rate should be reduced to $75.00, a paralegal rate. Plaintiff responds that Ms. Weiner’s contract attorney services were necessary once Lauren Pozna resigned, and emphasizes that her work was limited to researching and drafting. Defendant’s objection on this issue is well-taken. Ms. Weiner is not admitted to the Southern District of Florida nor to The Florida Bar. This district’s Special Rule 4(a) of the Rules Governing the Admission, Practice, Peer Review, and Discipline of Attorneys, provides that only members of the bar of this Court may

Larry Smith’s Declaration states he is a founding partner at SmithMarco law firm, and began practicing law thirty years ago. He is admitted to the Illinois Bar and nationwide to numerous federal courts [168-2 at 10-13]. He is actively involved in the National Association of Consumer Advocates and has delivered lectures on various consumer litigation issues.

Ms. Pozna’s Affidavit reflects that she has been a licensed Florida attorney since 2019 [DE 168-2 at 14] and was an associate at SmithMarco, P.C.

Declaration, the Court finds her requested hourly paralegal rate to be reasonable. Plaintiff will therefore be awarded attorney’s fees at the following rates: 1. Larry Smith at $550.00/hr; 2. David Marco at $550/hr.; 3. Lauren Pozna at $300/hr.; 4. Courtney Weiner at $200/hr. The Court now turns to the reasonable number of hours expended. ii) Reasonable Number of Hours Expended

1. Fees Incurred in Claims Against Other Defendants

Plaintiff seeks an award of attorney fees for approximately 500 hours of legal work. Defendant contends that some of Plaintiff’s requested fees are attributable solely to the claims prosecuted against Defendants TransUnion and Experian. Defendant requests a $8,619.50 deduction for time spent litigating solely against those other parties.⁹ Plaintiff counters that all of the work performed related to

Defendant has the better of this argument. Many of the entries reflect work necessarily performed against a specific defendant, rather than work that would be performed in obtaining information from a non-party witness. For example, Plaintiff’s review of Exeperian’s initial disclosures, preparation of a settlement demand and Rule 37 letter—which relates to compelling discovery and sanctions for failing to provide discovery—all arise between parties and not witnesses.

However, there is some merit to Plaintiff’s contention that similar work would have been preformed even if TransUnion and Experian were not Parties. Accordingly, the Court will apply a 50% across the board deduction to the disputed entries relating only to Experian and TransUnion, rather than the 100% reduction requested by Defendant. See, Loranger v. Stierheim,¹⁰ F. 3d 776 (11th Cir. 1994) (holding that a district court need not engage in an hour-by-hour analysis where fee documentation is voluminous and an hour-by-hour review is simply impractical and

2. Block Billing

Defendant contends that Plaintiff’s Counsel block billed and failed to differentiate their time between Defendants, making it impossible to discern what time is attributable to each Defendant and warranting an across-the-board reduction. ARR argues that those fees should be reduced by two-thirds so as to only capture that portion of the fees that are actually attributable to ARR. The Court has reviewed the identified “block” billing entries and concludes that a reduction of those entries is not warranted for two reasons. First, the challenged entries are not block-billed. Block-billing occurs when multiple tasks are billed in a single entry, without separately identifying the time spent on each task. Ceres Env't Servs., Inc. v. Colonel McCrary Trucking, LLC, 476 F. App'x 198, 203 (11th Cir. 2012). Typically, block billing inhibits a court’s ability to determine whether a reasonable amount of time was spent on particular tasks. Here, almost all the entries at issue describe discrete tasks and clearly delineate the amount of time spent on each task. Thus, those entries do not cause the “imprecision” in reviewing billing records that the Eleventh Circuit cautions against. Id. The Court is easily able to determine if the time spent on each task was reasonable. Second, the challenged entries consist of work that would have been performed even if ARR were the only defendant in the case. For example, several of the entries pertain to subpoena requests related to third parties, e.g. LendingClub,

Wells Fargo Bank, N.A., that denied Plaintiff credit. Other entires pertain to issues related to Plaintiff’s medical records, and general case matters. Other challenged entries pertain to work performed after the July¹, 2020, mediation wherein Plaintiff settled his claims against Trans Union and Experian [DE 36]. To the extent that some entries, reference more than one Defendant, Plaintiff’s voluntary 10% across the board reduction more than compensates for that overlap.

3. Across the Board Reduction

Finally, Defendant argues that Plaintiff’s attorney’s fee award should be significantly reduced because this was a “straight forward” FCRA case, where liability was established at the summary judgment stage, [DE 174 at 1]. Defendant thus contends that Plaintiff’s request should be reduced by 25% across the board due to an excessive number of hours billed [DE 174 at 17-18]. Based upon an extensive review of the record, the Court concludes that,

although this is an FCRA case, it was not “straight forward.” Rather, Plaintiff’s Counsel expended a reasonable number of hours given:¹) the contentious nature of litigation;²) Defendant’s continued assertion of various defenses, even after the summary judgment determination; and,³) Plaintiff’s success at trial. Simply put, after a careful and thorough review of the record, the Court finds the number of hours Plaintiff’s attorney’s spent prosecuting this case was reasonable, and not surprising given the Defendant AAR’s posture throughout the litigation. Accordingly, the Court will not impose an across the board reduction on this basis.¹¹

III. Motion for Award of Costs

A. Costs Available under FCRA

The costs recoverable pursuant to FCRA are limited to those provided in 28 U.S.C. § 1920. The following costs are allowable pursuant to that statute: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under 28 U.S.C. § 1923; (6) Compensation of court appointed experts, interpreters, and special interpretation services. 28 U.S.C. § 1920. A court cannot award costs other than those specifically authorized in § 1920, unless authorized by another applicable statute. See U.S. E.E.O.C. v. W&O, Inc., 213 F. 3d 600, 620 (11th Cir. 2000) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987)).

$4,140.15 for transcripts;⁴) $382.12 for copies necessarily obtained for use in the case; and,⁵) other costs in the amount of $1523.50 [DE 160-1 at 2]. Here, Plaintiff is the prevailing FCRA party and thus, is entitled to an award of costs. C. Defendant was not prejudiced by Plaintiff’s tardy memorandum in support filing

Defendant challenges the costs sought on a number of grounds. First, Defendant states that Plaintiff failed to file a memorandum in support of his bill of costs, as requed by Local Rule 7.3. Plaintiff’s Counsel concedes that he misread the Local Rule and erred in failing to submit the requisite memorandum. Plaintiff submitted the memorandum with his Reply and requests that the Court accept Counsel’s belatedly filed memorandum. Plaintiff contends that there is no prejudice to Defendant due to his initial omission. Defendant has not identified any prejudice suffered by Plaintiff’s error, and Defendant did not request to file a Sur-Reply in order to answer any issue raised in Plaintiff’s now-filed memorandum.¹² Thus, the Court presumes that Defendant suffered no prejudice due to the tardy filing. Accordingly, the Court accepts Plaintiff’s Memorandum in Support of his request for costs, and denies Defendant’s request to deny Plaintiff’s cost request on this basis.

Defendant also asserts that Plaintiff failed to submit receipts for all of the costs. In response, Plaintiff acknowledges that he did not include receipts for $985.90 for the subpoena issued to Ciox Health, and elects to withdraw his request for that sums. Similalry, in response to Defendant’s point that mediation costs are not recoverable, Plaintiff withdraws his mediation cost request in the amount of $997.50, conceding that those costs are not recoverable. Plaintiff thus now seeks $6,682.42 in costs.

E. Disputed Costs

i) Wells Fargo documents Plaintiff seeks to recover $222.25 in costs incurred for Wells Fargo’s preparation of documents in response to Plaintiff’s subpoena. Defendant objects to the request and contends that labor costs incurred in preparing documents in response to a subpoena are not recoverable. The submitted Wells Fargo receipt reflects that Plaintiff was billed $189.25 for 7.57 production hours for the requested documents, and $33.00 for the electronic delivery of those documents [DE 160-1 at 9]. Labor costs are not taxable under § 1920(4). Rather, “the fees for ‘copies of papers’ permitted under § 1920(4) allows recovery only for the reasonable costs of actually duplicating documents, not for the cost of gathering those documents as a prelude to duplication.” Allen v. U.S. Steel Corp., 665 F. 2d 689, 697 n.5 (5th Cir., Unit B 1982) (denying reimbursement of paralegal expenses incurred in gathering records for copying). Accordingly, Plaintiff will not be awarded the $189.25. for labor costs incurred in producing the requested docuements.

ii) Expedited deposition transcripts Costs for deposition transcripts are taxable as long as the transcripts were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). Such costs are not recoverable if they were “merely incurred for convenience, to aid in thorough preparation, or for purposes of investigation only.” U.S. E.E.O.C. v. W & O, Inc., 213 F. 3d 600, 620-21 (11th Cir.2000).

Defendant challenges Plaintiff’s request to recover expedited deposition transcripts costs, contending that costs of expedited transcripts incurred solely for the convenience of counsel are not taxable. Plaintiff responds that the expedited deposition transcripts were necessary because Defendant failed to respond to Plaintiff’s multiple correspondence regarding the depositions until the eve of the depositions, and then ultimately refused to produce those witnesses. Defendant replies that Plaintiff could have deposed the witnesses earlier and that, despite

ARR’s initial refusal to produce the witnesses, Plaintiff waited a month to move to compel those witnesses’ deposition, which put the deposition dates close to the close of discovery. After a thorough review of the Parties’ submissions and the record, the Court concludes that Plaintiff’s expedited deposition transcript costs were caused by the Defendant’s contentious and aggressive litigation tactics.¹³ Ultimately, Defendant produced the witnesses for deposition but only a few weeks before the discovery deadline. Accordingly, Plaintiff is entitled to recover those costs as they were necessarily obtained for use in the case, as opposed to mere counsel’s convenience. iii) Deposition readers at trial Defendant objects to Plaintiff’s request for “interpreter fees” pursuant to 1920, Plaintiff admits that the $526.00 sought for interpreting fees, are actually costs incurred because the Plaintiff had to have a witness stand in for the deponents who did not attend trial. The Supreme Court has made clear that “. . .compensation of interpreters is limited to the cost of oral translation . . .” Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 562, 573 (2012). Here, no costs were incurred for translation, rather the witnesses’ depostions were taken and read in Engligh. Thus, these costs are not for “interprters.” Indeed, Plaintiff’s Counsel simply could have used an employee to read the transcripts and did not need to hire someone for this task. Plaintiff is therefore not entitled to recoup these costs.

IV. CONCLUSION

Accordingly, based on the foregoing, it ORDERED that: 1. Plaintiff’s Motion for Attorney’s Fee [DE 168] is GRANTED, in part. Plaintiff is awarded attorney’s fees at the following hourly rates: Larry Smith at $550.00/hr;

Ce °

UNITED STATES SENIOR DISTRICT JUDGE

Copies furnished to Counsel