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Jubber v. Jubber

United States District Court, D. Maryland

September 9, 2019

Walter Jubber, Plaintiff
v.
Eugene Jubber, et al., Defendants

          MEMORANDUM GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION FOR ATTORNEY'S FEES AND COSTS (ECF NO. 51)

          J. MARK COULSON UNITED STATES MAGISTRATE JUDGE.

         I. BACKGROUND

         The underlying claim in this matter involves Defendants' alleged failure to comply with their support obligations pursuant to 8 U.S.C. § 1183(a) and its implementation regulations, 8 C.F.R. Part 213a, after sponsoring the immigration of Plaintiff, a family member from South Africa to the United States. Those obligations, crystalized in Immigration Form 1-864, require that the immigration sponsor support the immigrant at 125% of poverty level (currently $21, 137 per year or $1761.42 per month) if he or she cannot do so alone, until one of five terminating events has taken place, none of which has occurred.[1] Plaintiff brought suit on March 7, 2019 claiming that his immigration sponsors failed to so maintain him at various times since he became a lawful permanent resident in 2015. (ECF No. 1.)

         Shortly after filing suit, on May 29, 2019, Plaintiff obtained a preliminary injunction from this Court ordering Defendants to pay a fixed monthly amount of $61.42 pending the resolution of the case based on a snapshot of Plaintiff s financial situation at that time. (ECF No. 38). In so doing, the Court agreed that Plaintiff had established a likelihood of ultimately prevailing on the merits, although both past arrearages and future support obligations were strongly contested. (Id.).

         On June 5, 2019, the parties presented for a settlement conference before me. Ultimately, Defendants agreed to pay $21, 250, with $9, 475 earmarked to settle all claims of past liability, and the remaining $11, 750 as a "credit" against future support obligations.[2] (ECF No. 52-2 at pp. 98-109). Beyond the future support credit, the settlement agreement did not otherwise impair Plaintiffs ability to seek damages in the future to the extent Defendants were delinquent (i.e., Plaintiff was not releasing Defendants from any future 1-864 support obligations). However, Defendant would agree to apply the $11, 750 credit towards those obligations, fully preserving his ability to seek further support payments beyond that amount. (Id. at p. 101). As for attorney's fees and costs, the parties agreed to consent to my jurisdiction, brief the issue, and have me render a binding determination. (Id.).

         II. LEGAL STANDARD

         Title 8 of the United States Code H83a(c) provides for the "payment of legal fees and other costs of collection" among the remedies for successful enforcement of 1-864 obligations. See Younis v. Farooqui, 597 F.Supp.2d 552, 554 (D. Md. 2009) (noting sponsor "may also be liable for legal fees and costs of collection"). The Fourth Circuit utilizes a so-called "lodestar" analysis. McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2014). First, a court must arrive at the lodestar figure by multiplying the number of reasonable hours expended by a reasonable hourly rate. Id. In determining reasonableness of both hours and rate, the court must consider twelve "reasonableness" factors.[3] Id. Next, the court must subtract fees for unsuccessful claims unrelated to successful ones. Id. Finally, the court should award some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff. Id.

         In this case, Plaintiff seeks a base amount of fees and costs of $45, 775.31 reflecting approximately 125 hours of work and modest costs, and a multiplier of 1.5 pursuant to the lodestar analysis set forth above. Defendants challenge this based on two chief arguments. First, Defendants allege that Plaintiff was not forthcoming with certain financial information that might have justified an offset to the amount sought, delaying resolution of the case. Second, Defendants contend that the degree of success obtained by Plaintiff was minimal in comparison to what was sought, as reflected in the preliminary injunction award of $61.42 per month. The Court begins its analysis below.

         A. Reasonableness of Hours Expended

         When considering the total number of hours expended, the Court employs factors one, two, and seven. In doing so, the Court finds that the roughly 125 hours are largely reasonable[4] under the circumstances, after a review of the detail provided by Plaintiffs counsel both in terms of individual time entries and then in the "stage of litigation" format as required by this Court's Local Rule, Appendix B. (ECF No. 51-2 at pp. 11 et seq). In addition to the usual tasks, i.e., investigating the claim, researching the law and drafting initial pleadings and discovery, Plaintiff also filed a successful preliminary injunction and participated in a successful mediation session. The "novelty and difficulty" factor cuts both ways. On the one hand, this type of litigation is uncommon and somewhat esoteric, which generally requires additional research by the average attorney approaching this subject for the first time. On the other, given Counsel's expertise in this subject area, Counsel was in advantageous position to leverage his expertise in order to address the issues in the case, as he has done in many previous cases. (ECF No. 51-2 at pp. 1-2 and 140). The time entries, in the Court's view, demonstrate that those efficiencies were obtained. As for factor seven-urgency-it is true that the circumstances of a plaintiff arguing for monetary support might provide urgency, but there is no showing that this particular situation was more urgent than any other. This was partially evidenced by Judge Bredar's award of only a modest amount of monthly support in the preliminary injunction order, a reasonable assessment of Plaintiff's financial condition at that snapshot in time. (ECF No. 38).

         The Court does note that Plaintiff was unsuccessful in his motion to strike some of Defendant's affirmative defenses. Accordingly, the Court will deduct 5.91 hours. Additionally, the Court notes that on June 5, 2019, Plaintiffs counsel billed 5 hours for travel from Baltimore back to his office in Seattle, Washington. However, he also billed 8.09 hours for that very same travel (which included 45 minutes spent beginning the settlement agreement draft and 4.25 hours preparing a draft of the attorney fee petition). Therefore, the Court will deduct the first 5-hour entry as duplicative.

         Defendants' argument as to the hours spent is that Plaintiff and his counsel's behavior inordinately protracted what otherwise could have been a prompt settlement of the case by masking Plaintiffs true financial situation (which, in turn, would have allegedly mitigated Defendants' support obligation). This is not supported by the record. To be sure, financial information informally exchanged between the parties pre-suit, and various affidavits and information exchanged post-suit makes it unlikely that Plaintiff would have recovered full statutory damages due to likely mitigation. But it is hardly uncommon in litigation that a party's initial broad assertions in a complaint regarding damages go unchallenged during litigation.

         Additionally, the pre-suit settlement correspondence exchanged evidences efforts by Plaintiffs counsel to narrow the items in dispute. Further, it included his candid acknowledgment that Defendants' past and present support obligations might well be mitigated by factors such as any earnings by Plaintiff and further evidence of past material support from Defendants. Those efforts are detailed below.

         1. Plaintiffs counsel's initial pre-suit letter on December 17, 2018 generally asserted Defendants' support obligation and the components that should be considered in that calculation. (ECF No. 51-2 at p. 51).

         2. Defendants responded on December 27, 2018, submitting documentation regarding revenues of Plaintiff s limited liability company during 2017, one of the years for which past arrearages were potentially being claimed. (ECF No. 54-1, pp. 1-18).

         3. Plaintiffs counsel responded on January 4, 2019, arguing that the gross revenues for Plaintiffs company would need to be adjusted by any expenses to determine whether Plaintiff had any true earnings. Further, Plaintiffs counsel asked whether similar assertions of earnings attributable to Plaintiff were being made for 2018 and, if so, for Defendants to provide documentation of same. Plaintiffs counsel also invited, "a sensible conversation" as to how to calculate any past support obligation, acknowledging that any such obligation would be mitigated by any earnings by Plaintiffs. (ECF No. 54-1 at pp. 18-19).

         4. That same day, Defendants requested time to retain counsel in the case. (ECF No. 54-1 at p. 20).

         5. Defendants' counsel's response, later in January, acknowledged the 1-864 obligation generally, but contested any outstanding support liability based, premised in part, on allegations that Plaintiff had income from various sources. Thus, they demanded various financial information ...


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