Tankersly v. Continental Collection Agency

Filing 27

ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT: Plaintiff's Motion to Alter or Amend Judgment Pursuant to Fed.R.Civ.P. 59(e) 23 is DENIED by Judge Marcia S. Krieger on 11/21/11.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 10-cv-00131-MSK-KMT
TANISHA TANKERSLEY,
Plaintiff,
v.
CONTINENTAL COLLECTION AGENCY,
Defendant.

ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT

THIS MATTER comes before the Court on the Plaintiff’s Motion to Alter or Amend
Judgment Pursuant to Fed. R. Civ. P. 59(e) (#23), to which the Defendant responded (#25), and
the Plaintiff replied (#26). Having considered the same, the Court FINDS and CONCLUDES as
follows.
This is an action pursuant to the Fair Debt Collection Practices Act. The matter was
settled after the Plaintiff accepted an offer of judgment, which provided an award of $250 and
“reasonable attorney’s fees and costs incurred by Plaintiff, to be determined by the court upon
noticed motion should the parties be unable to agree upon the amount of such fees and costs.”
#15. Plaintiff moved for an award of attorney fees, which was denied on the following grounds:
Although the applicable provisions of the Fair Debt Collection
Practices Act allow counsel for a prevailing plaintiff to recover
reasonable fees and costs without the client having incurred (or
being liable for) same, the Plaintiff and her counsel waived such
statutory right in the accepting Defendant's offer of judgment [15]
which specifically limited the Defendant's obligation to pay. Under
the terms of the stipulated judgment, the Defendant is obligated to
pay only reasonable costs and attorney's fees "incurred by the

Plaintiff". According to her motion, the Plaintiff was represented
by counsel "free of charge", thereby incurring no attorney fees and
costs. In accordance with the stipulated judgment, therefore,
Plaintiff's counsel is not entitled to any award.
Order, # 22.
Plaintiff moves to amend the judgment and to grant her attorney fees. She argues that
despite her own representation in her motion that counsel’s services were provided “free of
charge,” these services were not provided pro bono. Rather, according to her retainer agreement
with her attorneys, representation is undertaken pursuant to the fee-shifting provisions of the Fair
Debt Collection Practices Act. Under the agreement, Plaintiff is only required to pay fees under
certain circumstances, including if she agrees “to accept a settlement without a requirement that
Defendant(s) fully pay [her attorneys’] fees.” Plaintiff contends that because the Court declined
to award fees pursuant to the offer of judgment, this contractual obligation means that she in fact
“incurred” attorney fees and the Court’s order is therefore in error. She also argues that it will
cause manifest injustice if she is required to pay her attorneys for the services they provided.
A motion to alter or amend a judgment pursuant to Fed. R. Civ. P. 59(e) should be
granted only to address (1) an intervening change in the controlling law; (2) new evidence
previously unavailable; or (3) the need to correct clear error or prevent manifest injustice.
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Such a motion is not
an appropriate vehicle to “advance arguments that could have been raised in prior briefing.” Id.
See also Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997) (“A Rule 59(e) motion to
alter or amend the judgment should be granted only ‘to correct manifest errors of law or to
present newly discovered evidence’”) (citations omitted).
Plaintiff’s evidence regarding her retainer agreement is clearly not new and there is no
reason that she could not have raised this argument in the original briefing on the motion for

attorney fees; the Defendant clearly argued in its response brief that Plaintiff had not incurred
fees and therefore was not entitled to an award under the offer of judgment. The motion could
be denied on this basis alone.
Moreover, Plaintiff has not shown clear error or manifest injustice. That Plaintiff
accepted a settlement offer that may have violated her agreement with her attorneys and may
require her to pay them personally does not demonstrate clear error in the Court’s determination
that the plain language of the offer of judgment did not require Defendant to pay fees where none
had been incurred by Plaintiff at the time of her motion.1 Moreover, Plaintiff has not
demonstrated manifest injustice in the denial of her motion for attorney fees. Plaintiff will only
be required to pay fees if her attorneys enforce the retainer agreement, to which she may have
defenses. Plaintiff has not demonstrated that she is entitled to relief under Rule 59(e).
THEREFORE, IT IS ORDERED that Plaintiff’s Motion to Alter or Amend Judgment
Pursuant to Fed. R. Civ. P. 59(e) (#23) is DENIED.
Dated this 21st day of November, 2011

BY THE COURT:

Marcia S. Krieger
United States District Judge

1

There is no evidence that even now she has incurred any fees, only that she might if the
agreement is enforced against her.