                             UNPUBLISHED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Dismissed in part; affirmed in part by unpublished per curiam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
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Unpublished opinions are not binding precedent in this circuit.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



                                               4
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,



                                         5
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)
                                            6
            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.



                                        7
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




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