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Kuntz v. Messerli & Kramer P.A.

United States District Court, D. Minnesota

August 4, 2017

JAMES V. KUNTZ, Plaintiff,
MESSERLI & KRAMER P.A., Defendant.



         This matter is before the Court on Plaintiff James V. Kuntz's motion for an award of reasonable attorneys' fees and costs against Defendant Messerli & Kramer P.A pursuant to Fed.R.Civ.P. 54(d). (See Dkt. No. 22.) Kuntz moved for attorneys' fees after accepting an offer of judgment on his Fair Debt Collection Practices Act (“FDCPA”) and invasion of privacy claims in the amount of $4, 500. (See Dkt. Nos. 19, 20.) Messerli & Kramer opposes Kuntz's motion, primarily on the ground that the request for $37, 207.50 in fees and costs is excessive. (See Defendant's Response Memorandum in Opposition (“Def. Br.”), Dkt. No. 31.) For the following reasons, the Court grants only part of the requested fees and costs.


         The FDCPA permits a successful plaintiff to recover the costs of the action and reasonable attorneys' fees. See 15 U.S.C. § 1692k(a)(3). “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.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Under this “lodestar method, ” courts should exclude hours that are “excessive, redundant, or otherwise unnecessary.” Id. at 434. As to a reasonable hourly rate, courts should consider “those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).

         “When determining reasonable hourly rates, district courts may rely on their own experience and knowledge of prevailing market rates.” Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005).

         In arriving at an appropriate total lodestar amount, courts may consider factors such as:

(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.

Hensley, 461 U.S. at 430 n.3 (citation omitted). “The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time.” Fox v. Vice, 563 U.S. 826, 838 (2011).


         A. Reasonable Hours

         Kuntz's FDCPA claim arises from alleged abusive telephone calls he received between December 2015 and August 2016. (Am. Compl. ¶¶ 13-31, Dkt. No. 5.) Messerli & Kramer answered Kuntz's Amended Complaint shortly after he initiated this action. (See Dkt. No. 6.) The Parties engaged in some discovery, including a short deposition of Kuntz lasting under three hours in February 2017. (See Dkt. No. 32-2.) Less than eight months elapsed between the initiation of this lawsuit and its conclusion in March 2017, when Kuntz accepted Messerli & Kramer's offer of judgment for $4, 500. (See Dkt. No. 19.) During that time, the Parties did not engage in any dispositive motion practice. The Parties otherwise engaged in very little litigation.

         Kuntz seeks fees on hours billed for the following: preparation of the complaint and amended complaint (10.71 hours), file review, investigation, and strategy (5.98), pre-trial conferences (4.88), discovery issues (15.76), deposition-related activities (18.79), outlining a motion for punitive damages and reviewing the offers of judgment (3.26), the fee petition (6.20), and miscellaneous activities (6.94). See Plaintiff's Memorandum in Support of His Motion (“Pl. Br.”) 3-5, Dkt. No. 27.) He also seeks fees for paralegal work involving: filing and serving documents (2.00), drafting and emailing the Rule 26(f) report (1.00), scheduling (0.50), drafting and serving discovery (1.00), drafting an authorization and subpoena (2.00), and drafting, editing, and serving deposition notices (1.50). (See Dkt. No. 28-2 at 4-8.) In total, Kuntz requests fees on 72.52[1] hours of attorney work and 8 hours of paralegal work. (See Pl. Br. 3-6.)

         The bulk of counsel's billed hours were excessive, redundant, and unnecessary for this uncomplicated and only modestly contentious FDCPA action. Neither the subject matter, nor the procedural history, of this case necessitated the work of two attorneys. See Hensley, 461 U.S. at 434 (noting that some cases may be “overstaffed”). Moreover, as Messerli & Kramer points out, the suit appears to be similar to one brought on behalf of Kuntz in 2014 in the District of North Dakota-in which Kuntz was represented by only one attorney, Thomas J. Lyons, Sr. See Kuntz v. Rodenburg LLP, No. 14-CV-55, 2015 WL 12591723 (D.N.D. July 13, 2015), aff'd, 838 F.3d 923 (8th Cir. 2016). This suggests that there were possible efficiencies and cost savings in litigating this similar action for the same plaintiff.

         It is questionable whether certain activities were necessary at all, such as the bulk of the discovery activities or outlining the motion for punitive damages. The extent of time expended on some of the activities also appears unreasonable. For example, although a complaint is required in every action, it was unreasonable for counsel to spend over ten hours drafting a seven page, 44-paragraph complaint that mirrors in substantial part the complaint from Kuntz's earlier action. (Compare Am. Compl., with ...

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