Nelson-Ramsey v. Deer Valley Auto Sales & Fleet Services Incorporated

Filing 13

ORDER GRANTING plaintiff's 10 Motion for Default Judgment. Plaintiff is awarded $1,000.00 in statutory damages and $1,770.50 in attorneys' fees. The clerk will tax costs upon compliance with LRCiv 54.1 and Rule 54(d), Fed. R. Civ. P. Signed by Judge Frederick J Martone on 7/19/2012.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Deer Valley Auto Sales & Fleet Services,)
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Inc.,
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Defendant.
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Savonnia Nelson-Ramsey,

No. CV 12-00747-PHX-FJM
ORDER

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We have before us plaintiff's motion for default [judgment] (doc. 10) and plaintiff's

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supplemental memorandum in support of the amount of damages, attorneys' fees and

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expenses (doc. 12). Plaintiff purchased a vehicle from defendant in November 2011. She

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contends that defendant failed to provide her with the correct total of payments, as required

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by the Truth in Lending Act ("TILA"). Plaintiff brought a one-count complaint against

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defendant in April 2012 for violation of TILA. Defendant was served but chose not to

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appear. The clerk entered default against defendant for failure to answer or otherwise plead.

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Plaintiff then moved for default judgment and we ordered a supplemental memorandum

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substantiating her claimed damages and attorneys' fees.

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"[U]pon default the factual allegations of the complaint, except those relating to the

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amount of damages, will be taken as true." TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915,

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917-18 (9th Cir. 1987). Plaintiff requests statutory damages of $2,000 pursuant to 15 U.S.C.

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§ 1640(a)(2)(A)(i), which provides that any creditor who fails to comply with the statutory

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requirements shall be liable in an amount equal to the sum of twice the amount of any finance

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charge in connection with the transaction. Although this clause does not contain a monetary

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limit, the ceiling on recoveries under § 1640(a)(2)(A)(ii) applies to recoveries under clause

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(i). Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60, 125 S. Ct. 460, 467 (2004).

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Defendant calculated the finance charge to be $1,705.90. Twice this amount would

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be over the limit of clause (ii), which plaintiff contends, without support, is $2,000. Section

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1640(a)(2)(A)(ii) provides that the cap is $1,000.00.

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Our own research indicates that perhaps plaintiff is relying on the Dodd-Frank Wall

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Street Reform and Consumer Protection Act ("Dodd-Frank Act"). Section 1416 of this Act

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increased TILA's civil liability ceiling from $1,000 to $2,000. Pub. L. No. 111-203, §

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1416(a)(1)(B), 124 Stat. 1376, 2153 (2010). Unless specifically provided, the Act takes

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effect one day after enactment, which would be July 22, 2010. § 4, 124 Stat. at 1390. Section

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1400(c) of the Dodd-Frank Act states that "[a] section of this title [XIV] for which

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regulations have not been issued on the date that is 18 months after the designated transfer

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date shall take effect on such date." The transfer date was July 21, 2011. Therefore, if

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regulations are not issued within 18 months of the transfer date, the default effective date for

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Title XIV is January 21, 2013. The scope of section 1400(c) is ambiguous – it may apply to

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all sections within Title XIV, or only those sections for which implementing regulations are

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required (which would not include § 1416).

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In Hummel v. Hall, No. 6:11-CV-00012, 2012 WL 2335950 (W.D. Va. June 19,

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2012), the court analyzed the relevant statutory language, structure, and legislative history

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and concluded that § 1400(c)'s delayed effective date applies to all of Title XIV. We agree

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and conclude that plaintiff's damages under 15 U.S.C. § 1640 are thus limited to $1,000.

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Plaintiff requests $2,503.00 in attorneys' fees and $415.00 in costs. Pursuant to 15

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U.S.C. § 1640(a)(3), an unsuccessful creditor in a TILA action is liable for "the costs of the

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action, together with a reasonable attorney's fee as determined by the court." "An award of

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attorneys' fees under § 1640(a)(3) is properly calculated through a lodestar analysis, in which
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the court determines a reasonable rate and multiplies it by the number of attorney hours

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reasonably expended on the case." Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 891 (9th

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Cir. 2011).

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Plaintiff provides support for only a portion of her fee request. Lawyers Marshall

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Meyers, Jose F. Gill, and Aaron Radbil filed declarations supporting their portions of the fee

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request, and the firm resume contains their biographical information. The amount of hours

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expended by Meyers, Gill, and Radbil are reasonable. Their rates are reasonable, taking into

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account, among other factors, their experience and prevailing market rates. But the time

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sheet contains charges from an additional nine people. None of plaintiff's supporting

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documentation identifies these individuals, lists their billing rates, or provides any

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information about them. It is not possible to determine whether their rates are reasonable

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because the court does not know their rates or whether they are lawyers, law clerks,

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paralegals, or legal assistants. The court will award fees for the work of Meyers, Gill, and

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Radbil in the amount of $1,770.50.

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Pursuant to LRCiv 54.1(a), "[a] party entitled to costs shall, within fourteen (14) days

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after the entry of final judgment, . . . file with the Clerk of Court and serve upon all parties,

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a bill of costs on a form provided by the Clerk."

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IT IS ORDERED GRANTING plaintiff's motion for default [judgment]. (Doc. 10).

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Plaintiff is awarded $1,000.00 in statutory damages and $1,770.50 in attorneys' fees. The

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clerk will tax costs upon compliance with LRCiv 54.1 and Rule 54(d), Fed. R. Civ. P.

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DATED this 19th day of July, 2012.

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