Shelton v. Marshall

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ADRIANNA SHELTON, Plaintiff, v. CODY MARSHALL, d/b/a C&M TOWING AND RECOVERY, and TRADER RICKS LLC, Defendants.

No. 5:22-cv-042

United States District Court, W.D. Virginia, Harrisonburg Division

May 13, 2024

MEMORANDUM OPINION

MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the court on plaintiff Adrianna Shelton's motion for approval of attorney fees, ECF No 19, following the court's entry of default judgment against all defendants on March 19, 2024, ECF No. 18. For the reasons provided below, the court GRANTS Shelton's motion, ECF No. 19, and awards Shelton a total sum of $11,607.50.

I. BACKGROUND

Shelton initiated this action against defendants Cody Marshall d/b/a C&M Towing and Recovery (“Marshall”) and Trader Ricks LLC (“Trader Ricks”) for their repossession of Shelton's car at her home-over Shelton's repeated objections and despite a written agreement with Trader Ricks from just 9 days earlier establishing that Shelton was current on her car payments.^[1] Neither defendant appeared in the case, and the Clerk entered default as to both defendants on October 5, 2022. ECF No. 11. On July 24, 2023, Shelton filed a motion for default judgment, ECF No. 13, and on November 30, 2023, the court held an in-person default judgment hearing at the federal courthouse in Harrisonburg, Virginia. On March 19, 2024, the court granted Shelton's motion for default judgment as to all claims and awarded damages in the amount of $39,423.60, plus reasonable attorney's fees and costs to be determined following additional briefing. Order & Mem. Op., ECF Nos. 17, 18. By motion filed on March 26, 2024, Shelton now seeks attorney's fees and costs in the amount of $13,022 and $117.50, respectively. Pl.'s Mot., ECF No. 19. To date, defendants have still not appeared in this matter or responded to Shelton's motion. Accordingly, Shelton's motion is ripe for resolution.

II. DISCUSSION

As the court explained in its memorandum opinion regarding default judgment, Shelton is entitled to an award of reasonable attorney's fees and costs under both the FDCPA anuTILA. See Mem. Op., ECF No. 17, at 12,15-16 (citing 15 U.S.C. § 1692k(a) and 15 U.S.C. § 1640(a)). The Fourth Circuit has outlined a three-step process for determining proper attorney's fees. McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013). First, the court must calculate the “lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate.” Id. (quoting Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009)). Next, the court must “subtract fees for hours spent on unsuccessful claims unrelated to successful ones.” Id. (quoting Robiffswr, 560 F.3d at 244). Finally, the court “should award some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff.” Id. (quoting Robinson, 560 F.3d at 244).

A. Lodestar Calculation

Shelton requests $13,022 in attorney's fees in this action. The fees are based on a total of 42.6 hours billed-which Shelton suggests should be discounted by 10% “in the exercise of billing discretion”-at an hourly rate of $340. Pl.'s Mot., ECF No. 20, at 3. Shelton supports this figure with declarations from her counsel-which includes an itemized timekeeping record-and from a local attorney who attests to the customary rates for federal civil litigation in the Harrisonburg, Virginia, area. See White Deel., Exh. A, ECF No. 20-1; Penrod Deci., Exh. B, ECF No. 20-2.

In determining reasonableness of the rate and number of hours, the Fourth Circuit instruct that a district court's “discretion should be guided by the following twelve factors:”

(1) the 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.

Robinson, 560 F.3d at 243 (quoting Barber v. Kimb cell's He., 577 F.2d 216, 226 n.28 (4th Cir. 1978)). These factors may be used to sometimes “inform” and “adjust” the calculation. McAfee, 738 F.3d at 89.

1. Reasonableness of Hourly Rate

To establish the reasonableness of the hourly rates requested, the moving party “must produce specific evidence of the ‘prevailing market rates in the relevant community' for the type of work for which he seeks an award.” Spell v. McDaniel, 824 F.2d 1380, 1402 (4th Cir. 1987) (quoting Blum v, Stenson, 465 U.S. 886, 895-96, n.ll (1984)). The prevailingrate “may be established through affidavits reciting the fees of counsel with similar qualifications, information concerning fee awards in similar cases, and/or specific evidence of counsel's billing practice.” Freeman v. Potter, No. 7:04-cv-276, 2006 WL 2631722, at *4 (W.D. Va. Sept. 13, 2006) (citing Spell. 824 F.2d at 1402).

Shelton is represented in this lawsuit by Jeremy White, a member of the Virginia bar with approximately 20 years of experience and admissions to six state and federal courts in Virginia. See White Deci., ECF No. 20-1. White focuses on consumer law and tenant's rights as part of his practice at Blue Ridge Consumer Law, PLLC, the firm that he founded in 2022 and that he continues to own and manage. Id. Prior to opening his own consumer law practice, he worked at the Virginia Legal Aid Society, Inc., first as a staff attorney in 2002, then as a Senior Attorney, and then Managing Attorney of the Lynchburg office. Id. He is a member of the National Association of Consumer Advocates and Lynchburg Bar Association, and he has presented or co-presented several trainings on various consumer law issues. Id. Despite his experience, White does not include in his declaration the rates that he typically charges in similar consumer law matters (either by charging clients directly or by a court's award of fees following a successful action).

However, Shelton, who bears the burden of establishing a reasonable hourly rate, McAfee, 738 F.3d at 91, submitted a declaration from Grant Penrod, a civil litigation attorney who has been practicing in Harrisonburg, Virginia, since 2008, to attest to the reasonableness of White's rate. Penrod Deci., Exh. B, ECF No. 20-2. Penrod testified that, in his experience, rates for an experienced attorney for federal actions in Harrisonburg, Virginia, “range from $300-$400 an hour, with most attorneys charging at the upper end of that range.” Penrod Deci., Exh. B, ECF No. 20-2. He adds that the current hourly rate for partners at his own firm, including himself, is $370 per hour. Id. He further stated that he has consulted with White on several consumer law cases over the course of more than 15 years and, in his opinion, White's hourly rate of $340 is reasonable given White's 20 years of experience, his qualifications, and Iris expertise in the specialized area of consumer law. Id.

The court notes that several cases from this district have awarded fees for partner-level attorneys at a rate above $340. Hurd v. Cardinal Logistics Mgmt. Corp., No. 7:17-cv-319, 2019 WL 6718111, at *4 (W.D. Va. Dec. 10, 2019), affd, 829 Fed.Appx. 620 (4th Cir. 2020) ($350 rate); Quesenberry v. Volvo Grp. N. Am., Inc., No. 1:09-cv-022, 2010 WL 2836201, at *8 (W.D. Va. July 20, 2010), report and recommendation adopted, 2010 WL 3521996 (W.D. Va. Sept. 3, 2010) ($400 rate); Nail/ v. Lincoln Mortg., LLC, No. 3:09-cv-039, 2010 WL 2292133, at *3 (W.D. Va. June 7, 2010) (reducing the attorney's requested rate of $425 per hour to $375 per hour because $375 per hour is “at the top end of the scale charged by lawyers either in the Charlottesville or Harrisonburg divisions”).

However, none of the cases that Shelton cites in favor of a higher rate involve issues of consumer law. See Doc v, Aiger, No. 5:15-cv-035, 2018 WL 4655749, at *4 (W.D. Va. Sept. 27, 2018) (public university student's due process challenge); Supinger v. Virginia, No. 6:15-CV-17, 2019 WL 1450530, at *2 (W.D. Va. Mar. 4, 2019) (due process challenge for termination of employment); Hammer v. Johnson Senior Ctr., Inc., No. 6:19-cv-27, 2021 WL 7541180, at *4 (W.D. Va. Dec. 20, 2021) (ERISA breach of fiduciary duty action): Hurd, WL 6718111, at *3 (employment law); Atkins v, Va. Dep't of Trtmsp., Case No. 1:13-cv-057 (W.D. Va. Feb. 11, 2015) (Title VII employment discrimination).

This is important because the prevailing market rate should be assessed based on fees received in “comparable cases.” Spell, 824 F.2d at 1402 (emphasis added); see Bradford v. HSBC Mortg. Corp., 859 F.Supp.2d 783, 798 (E.D. Va. 2012) (reasoning that the appropriate market for assessing attorney's fees in a TILA action is “consumer-rights and residential-mortgage litigation”). In so doing, many cases in this district assess the reasonableness of a higher rate based on the size and complexity of the issues involved in the litigation. In Barre v. DCN Holdings, Inc. for example, the court assessed the reasonableness of hourly rates of $300 and $350 after the court entered default judgment on the plaintiff s FDCPA claims. No. 7:20-cv-416, 2022 WL 1785301, at *2 (W.D. Va. June 1, 2022). In so doing, the court noted this district has recognized that “an hourly rate of $350 is reasonable for an experienced attorney in ‘large' and ‘complex' civil litigation,” but that the FDCPA...