UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-2258

DANIELLE RANDLE, 

Plaintiff - Appellee, 

v. 

H&P CAPITAL, INCORPORATED; GARY ROBERT HENRION; NOEL LOUIS 

POOLER, 

Defendants – Appellants, 

and 

MS. ROBERTS, 

Defendant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Robert E. Payne, Senior

District Judge. (3:09-cv-00608-REP) 

Submitted: November 27, 2012 Decided: March 5, 2013

Before MOTZ, KING, and WYNN, Circuit Judges. 

Dismissed in part; affirmed in part by unpublished per curiam 

opinion. 

Steven R. Dunn, Dallas, Texas, for Appellants. Dale W. Pittman, 

LAW OFFICE OF DALE W. PITTMAN, P.C., Petersburg, Virginia; Owen
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Randolph Bragg, HORWITZ, HORWITZ & ASSOCIATES, Chicago, 

Illinois, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
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PER CURIAM:

H&P Capital, Incorporated (“H&P”), Gary Robert 

Henrion, and Noel Louis Pooler appeal the district court’s award 

of attorney’s fees in this litigation brought by Danielle Randle 

pursuant to the Fair Debt Collection Practices Act (“FDCPA”), 

15 U.S.C.A. §§ 1692–1692p (West 2009 & Supp. 2012), and the 

Florida Consumer Collections Practices Act (“FCCPA”), Fla. Stat. 

§§ 559.55–559.785 (2010). We dismiss the appeal in part and 

affirm in part.

As an initial matter, counsel for Henrion has filed a 

suggestion of death, informing us of Henrion’s death during the 

pendency of the appeal. We have informed the known survivor of 

the decedent and counsel for the parties of the need for 

substitution if the survivor or any personal representative of 

the decedent’s estate desires the further prosecution of the 

appeal. Counsel and the survivor have not informed us of any 

such desire. Accordingly, pursuant to Fed. R. App. P. 43(a), we 

dismiss the appeal as to Henrion. Crowder v. Hous. Auth. of 

Atlanta, 908 F.2d 843, 846 n.1 (11th Cir. 1990); Gamble v. 

Thomas, 655 F.2d 568, 569 (5th Cir. Unit A Aug. 1981). 

Appellants H&P and Pooler, however, continue to prosecute the 

appeal, and we turn now to their challenges to the district 

court’s fee award.
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Randle’s complaint alleged that H&P, Henrion, Pooler, 

and a Defendant identified as Ms. Roberts violated the FDCPA by 

leaving messages on her answering machine and telephone 

voicemail that failed to inform her the communications were from 

a debt collector and falsely implied that legal action had been 

taken and by willfully engaging in other conduct that could 

reasonably be expected to “abuse or harass.” Randle brought the 

action on her own behalf and on behalf of three classes of 

Virginia residents who received similar messages from 

Defendants. She sought certification of the action as a class 

action, declaratory relief under the FDCPA, injunctive and 

declaratory relief under the FDCPA and FCCPA, statutory damages 

under the FDCPA and FCCPA, and attorney’s fees, expenses, and 

costs under both acts. Prior to any class certification, 

however, the case settled. The parties agreed that Defendants 

would pay Randle $6,000 “in full and final settlement of all of 

her claims,” plus attorney’s fees incurred to prosecute her 

individual claims.

Counsel for Randle subsequently submitted requests for 

attorney’s fees and costs totaling $89,083.69. See 15 U.S.C.A. 

§ 1692k(a)(3) (mandating the payment of reasonable attorney’s 

fees and costs to a successful consumer under the FDCPA). The 

district court referred the request to a magistrate judge 
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pursuant to 28 U.S.C.A. § 636(b)(1)(A) (West 2006 & Supp. 2012). 

The magistrate judge recommended that the district court award 

Randle $85,966.59 in fees and costs. The district court 

sustained Defendants’ objection to the recommended award of 

attorney’s fees to O. Randolph Bragg -- one of the two attorneys 

who represented Randle in the proceedings below -- in the amount 

of $9,090.00, adopted the recommendation except as to that 

recommended fee, and awarded Randle $76,876.59 in attorney’s 

fees and costs.

“It is for the district court in the first instance to 

calculate an appropriate award of attorney’s fees.” Carroll v. 

Wolpoff & Abramson, 53 F.3d 626, 628 (4th Cir. 1995). 

“On appeal, this court has a duty to affirm an attorney’s fee

award which falls within the district court’s broad discretion.” 

Id. (internal quotation marks and alteration omitted).

As the district court recognized, its discretion in 

awarding attorney’s fees is guided by the twelve factors first 

set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714,

717-19 (5th Cir. 1974), and adopted by this court in Barber v. 

Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir. 1978). The Barber

factors include such considerations as the time and labor 

required, the difficulty of the issues litigated, customary fees 

in similar situations, and the results obtained. These factors, 
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however, “usually are subsumed within the initial calculation of 

hours reasonably expended at a reasonable hourly rate[, i.e., 

the lodestar].” Hensley v. Eckerhart, 461 U.S. 424, 434 n.9 

(1983). “When . . . the applicant for a fee has carried his 

burden of showing that the claimed rate and number of hours 

[expended] are reasonable, the [lodestar] is presumed to be the 

reasonable fee contemplated” by the statute. Blum v. Stenson, 

465 U.S. 886, 897 (1984). The FDCPA, however, “does not mandate 

a fee award in the lodestar amount,” and the district court 

maintains the discretion to depart from it in appropriate 

circumstances. Carroll, 53 F.3d at 629.

The district court in this case explained its 

rationale for awarding the attorney’s fee, discussing relevant 

Barber factors in concluding that Randle’s counsel expended a 

reasonable number of hours and in calculating a reasonable 

hourly rate for their services. Appellants argue that the

district court abused its discretion in awarding attorney’s fees 

because the award fails to account for Randle’s lack of success 

on her class claims and efforts to obtain non-monetary relief.* 

We reject this argument.

 * As part of this argument, Appellants also argue that the 

district court erred by failing to “properly” consider the 

theory of proportionality and in failing to conduct an 

“analysis” of the claims on which Randle failed and the claim on 

which she prevailed in awarding attorney’s fees. Appellants, 

(Continued)
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The Supreme Court has noted generally that “the most 

critical factor in determining the reasonableness of a[n] 

[attorney] fee award is the degree of success obtained.” Farrar 

v. Hobby, 506 U.S. 103, 114 (1992) (internal quotation marks 

omitted) (observing that a nominal damages award bears on the 

propriety of fees awarded pursuant to 42 U.S.C. § 1988 (2006)). 

Our precedents demonstrate that a “district court may decrease 

the amount of fees that might otherwise be awarded in order to 

account for the plaintiff’s limited success.” McDonnell v. 

Miller Oil Co., Inc., 134 F.3d 638, 641 (4th Cir. 1998) (citing 

cases). Randle’s recovery in this case, however, was not 

nominal. Indeed, she was highly successful, settling “all of 

her claims” for $6,000, six times the maximum recovery amount 

permitted for individual actions under the FDCPA, 15 U.S.C.A. 

§ 1692k(a)(2)(A), and the district court’s fee award accounts 

for the work performed by Randle’s attorneys in pursuing this 

successful outcome. Insofar as Appellants may be advancing an 

argument that evaluates the relative importance of the kinds of 

relief sought by Randle as a basis for overturning the district 

 

however, do not explain what a “proper” consideration would have 

entailed or how such an “analysis” would have aided the district 

court in this case. Moreover, it is clear from the record that 

the district court considered the fact that the parties agreed 

that Defendants would pay attorney’s fees incurred to prosecute 

Randle’s individual claims.
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court’s fee award, we reject their effort. See Mercer v. Duke 

Univ., 401 F.3d 199, 205 (4th Cir. 2005) (holding that courts 

evaluating the degree of success on the merits between 

successful and unsuccessful claims should not attempt to 

determine what the plaintiff would have thought the more 

important form of relief).

We also reject as meritless Appellants’ challenges 

based on Randle’s attorneys’ evaluation of her case and the lack 

of any need for the participation of attorney Bragg. The 

challenge regarding the attorneys’ evaluation of Randle’s case 

is unexplained and not supported by any evidence of record. 

Further, Appellants’ arguments regarding attorney Bragg fail to 

explain in any principled fashion how the district court abused 

its discretion in awarding fees for his work in this case. 

Finally, we reject as wholly without merit Appellants’ argument 

that the district court abused its discretion in failing to 

“significantly reduce” -- by an unspecified figure -- the 

attorney fee awarded in this case on the bases that Randle did 

not prevail on her claims and her attorneys’ allegedly 

“excessive” billing.

Accordingly, we dismiss the appeal in part and affirm 

the district court’s judgment in part. We dispense with oral 

argument because the facts and legal contentions are adequately 
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presented in the materials before this court and argument would 

not aid the decisional process.

DISMISSED IN PART;

AFFIRMED IN PART