Hall v. Travelers Pers. Ins. Co.

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MICHAEL HALL, Plaintiff, v. TRAVELERS PERSONAL INSURANCE COMPANY, and INSIDE RESPONSE, LLC, Defendants.

No. 2:20-cv-01001-KWR-KRS

United States District Court, D. New Mexico

November 12, 2021

ORDER GRANTING MOTION FOR ENTRY OF JUDGMENT

KEA W RIGGS UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on Plaintiff's Motion for Entry of Judgment (Doc. 67), and Defendant Inside Response, LLC's Motion for Leave to File Sur-reply (Doc. 71). Having reviewed the pleadings and the applicable law, the Court finds Plaintiff's motion is WELL-TAKEN and therefore, is GRANTED, and Defendant Inside Response's motion for leave to file sur-reply is DENIED. A separate judgment will be entered.

BACKGROUND

This is a telemarketing case alleging violations of the Telephone Consumer Protection Act 47 U.S.C. § 227, and the New Mexico Unfair Practices Act (“UPA”), NMSA § 57-12-1, et seq. On May 3, 2021, Defendant Inside Response, LLC gave an offer of judgment pursuant to Fed.R.Civ.P. 68. The offer of judgment was for $5, 000 for the alleged violations of the TCPA and the UPA. Doc 64-1 at 1. Defendants offered to pay reasonable attorney's fees and taxable and recoverable costs Plaintiff accrued “through the date of this Offer of Judgment with respect to the claims against Inside and Travelers.” Doc. 64-1 at 1. Plaintiff accepted this offer of judgment. Doc. 64.

DISCUSSION

At issue in this motion is how much attorney's fees and costs Plaintiff should be awarded. Plaintiff prevailed in this case after accepting an offer of judgment pursuant to Fed.R.Civ.P. 68. Plaintiff seeks a judgment totaling $66, 832 for the following amounts:

• $5, 000 actual and statutory damages for Plaintiff;

• $54, 000 in attorney's fees (180 hours x $300 hourly rate)

• $3, 021 in costs;

• $4, 811 in New Mexico gross receipts tax on the fees and costs; and

• Post-judgment interest.

Defendants assert that the court should reduce Plaintiff's attorney fee request to $11, 323 and costs to $2, 336, summarized as follows:

• An hourly rate of $300 is unreasonable;

• Plaintiff allegedly double billed for some matters;

• Certain clerical matters are not billable; and

• Plaintiff's attorney's billed hours are unreasonable.

For the reasons explained below, the Court will grant in part Plaintiff's request for fees and costs. The Court will reduce Plaintiff's attorney's fees and costs, and enter judgment in the amount of $65, 111.50, as itemized below:

• $5, 000 actual and statutory damages for Plaintiff;

• $53, 280 in attorney's fees (177.6 hours x $300 hourly rate);

• $2, 336 in costs; and

• $4, 495.50 in New Mexico gross receipts tax on the attorney's fees.

I. Plaintiff's attorney's fees are reasonable.

As explained below, the Court will award reasonable attorney's fees in the amount of $53, 280. “In diversity cases, attorney fees are a substantive matter controlled by state law.” Mooring Capital Fund, LLC v. Knight, 388 Fed.Appx. 814, 825 (10th Cir. 2010); Scottsdale Ins. Co. v. Tolliver, 636 F.3d 1273, 1279 (10th Cir. 2011) (“statutory provisions permitting an award of attorneys' fees are substantive where the statute permits the prevailing party in certain classes of litigation to recover attorneys' fees.”). Here, the parties appear to agree that relevant statute under which Plaintiff is entitled to attorney's fees is New Mexico's Unfair Practices Act. NMSA (1978), § 57-12-10(C) (“The court shall award attorney fees and costs to the party complaining of an unfair or deceptive trade practice or unconscionable trade practice if the party prevails.”). Therefore, the Court will look to state law on the issue of attorney fees.

“When adjudicating a fee request under the UPA's fee-shifting provision, the Court of Appeals of New Mexico has stated that ‘[o]ne way of arriving at a reasonable fee is the ‘lodestar' method....' In this method, the court determines a fee that approximates a reasonable hourly rate multiplied by the number of hours reasonably incurred in the representation.” Fallen v. GREP Southwest, LLC, 247 F.Supp.3d 1165, 1199 (D.N.M. 2017) (quoting Atherton v. Gopin, 2012-NMCA-023, ¶ 7, 272 P.3d at 701). This lodestar value “serves as a starting point for the calculation of a reasonable fee.” Id.; see also Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (“The 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.”). Once the Court makes these two determinations, the fee “claimant is entitled to the presumption that this lodestar amount reflects a ‘reasonable' fee.” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998).

“[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley, 461 U.S. at 437, 103 S.Ct. 1933. “The applicant should exercise ‘billing judgment' with respect to hours worked, ..., and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims.” Id. The district court should “provide a concise but clear explanation of its reasons for the fee award.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), quoted in Olivo v. Crawford Chevrolet Inc., 526 Fed.Appx. 852, 855 (10th Cir. 2013)

A. Hours billed were reasonably expended.

Initially, the Court finds that the hours billed were generally reasonably expended in this litigation, with certain exceptions noted below. The Court reviewed the docket and the record before it, including Plaintiff's attorney billing records, and Defendants' table of objections and proposed cuts. Docs. 67-1, 68-1. Plaintiff's attorney, Mr. Childress, billed for approximately 187 hours in this case. See doc. 67-1. Mr. Childress proposes to cut 7 hours, and asserts that 180 hours were related to the New Mexico Unfair Practices Act claim. He states in an affidavit that a less experienced plaintiff's attorney would have billed between 300 to 400 hours for a similar case. This was a well litigated case that went through discovery and multiple rounds of motions, including two motions for summary judgment, a motion to amend complaint, and discovery motions. The Court has reviewed Mr. Childress's billing records and finds that they are adequately detailed for the Court to determine whether his billing was reasonable. Upon reviewing each time entry, the Court finds that the amount of time billed was reasonable for each task. Given the complexity of the claims and the litigation before the Court, the hours expended were generally reasonable. The Court will address of Defendants' specific objections below.

Initially, Defendants assert that Mr. Childress impermissibly block billed his time. The Court has discretion to reduce an attorney's hours that are the product of “sloppy and imprecise time entries that contain block billing, as well as hours that are unnecessary, irrelevant or duplicative.” Fallen, 247 F.Supp.3d at 1199-1200. Generally, the Court finds that the entries are sufficiently detailed to determine whether the time spent on those tasks was reasonable. Therefore, the Court declines to reduce Plaintiff's fees on this basis.

Defendants also assert that Mr. Childress should not bill for clerical work. Generally, purely clerical tasks should not be billed at an attorney's rate. Hayes v. I.C. Sys., Inc., No. 2:14-CV-2513-JTM-KGG, 2015 WL 506192, at *4 (D. Kan. Feb. 6, 2015). “Tasks that amount to filing, organizing files, making copies, printing, ordering file folders, organizing boxes, updating files with correspondence and pleadings, and preparing files for storage” must be deducted as purely clerical work that is not compensable. Id. at *26-27; see also Bell v. Turner Rec. Comm'n, 2010 U.S. Dist. LEXIS 1547, at *15, 2010 WL 126189 (D.Kan. Jan. 8, 2010) (deducting time attorney spent on “purely clerical or secretarial tasks, ” such as “ordering and paying for copies; communication with court reporters; obtaining and preparing summonses; and communication with process servers.”). However, the Court believes that ensuring that service of process was properly performed, or the creation of a trial notebook, may be billed by an attorney under the circumstances of this case. Doc. 69 at 7-8. The Court agrees with Plaintiff that reviewing summonses is not necessarily clerical.

However, the Court concludes that Plaintiff's attorney should not have billed certain tasks at an attorney's rate, and Plaintiff has not shown that these tasks should otherwise be billed at another rate. Therefore, the Court reduces the following:

• .6 hours on August 26, 2020 to “locate Kansas process server for Inside Response and prepare and send service of process package with instruction.”;

• .6 hours on August 27, 2020 for preparing service of process package, forwarding to statutory agent, and making notes and organizing file;

• .1 hours on March 4, 2021 to arrange for court-reporter; and

• .1 hours on April 29, 2021 to pay court reporter's bill for Inside deposition.

In sum, the Court cuts 1.4 hours as impermissibly billed clerical time. Although Defendants request that the Court cut even more time, the Court disagrees and concludes that they were reasonably billed by an attorney.

Defendants also assert that the number of hours billed in this case are excessive and unreasonable. Overall, the Court finds that the hours billed in this case are reasonable not excessive in light of the extent of litigation in this case. Moreover, reviewing each line item, the Court does not believe that Plaintiff's attorney billed excessively for any specific task.

Defendants assert that Plaintiff has...