STANLEY v. F5 SURGICAL LLC et al
ORDER denying 45 Motion for Attorney Fees. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 1/11/2022. (ggs)
Case 3:20-cv-00007-CAR Document 47 Filed 01/11/22 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
No. 3:20‐CV‐7 (CAR)
A SURGEON’S FIRST ASSISTANCE, :
LLC and SCOT G. FORTE, an
ORDER ON MOTION FOR ATTORNEY’S FEES
Before the Court is Defendants A Surgeon’s First Assistance, LLC and Scot G.
Forte’s Motion for Attorneys’ Fees. For the reasons explained below, the Court DENIES
Defendants’ Motion [Doc 45].
On January 24, 2020, Plaintiff Michele Stanley filed this action asserting
Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.
(“FDCPA”) in their attempts to collect a medical debt from Plaintiff. Defendants filed a
pre‐answer motion to dismiss, but Plaintiff filed an Amended Complaint. Thereafter,
Defendants answered Plaintiff’s Amended Complaint and asserted five counterclaims
against Plaintiff breach of contract, conversion, unjust enrichment, money had and
Case 3:20-cv-00007-CAR Document 47 Filed 01/11/22 Page 2 of 3
received, and punitive damages under Georgia law. Plaintiff filed a motion to dismiss the
counterclaims, which the Court granted. Defendants did not move to dismiss Plaintiff’s
Amended Complaint, and the case proceeded through discovery. After discovery,
Defendants filed a motion for summary judgment, which the Court granted finding
Defendants were not debt collectors under the FDCPA. Defendants then filed the current
Motion for attorney’s fees under 15 U.S.C. § 1692k(a)(3) and 28 U.S.C. § 1927.
15 U.S.C. § 1692k(a)(3) of the FDCPA provides that “[o]n a finding by the court
that an action under this section was brought in bad faith and for purposes of harassment,
the court may award to the defendant attorney’s fees reasonable in relation to the work
expended and costs.”1 “The burden is on the prevailing defendant to affirmatively show
that the action was brough in bad faith and for the purposes of harassment.”2 28 U.S.C. §
1927 provides that an attorney “who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to satisfy personally the
excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”
“The provisions of § 1927, being penal in nature, must be strictly construed.”3 An attorney
multiplies court proceedings unreasonably and vexatiously when his conduct “is so
15 U.S.C. § 1692k(a)(3).
2 Gillis v. Deutsche Bank Tr. Co. Americas, 2016 WL 551765, at *3 (M.D. Fla. Jan. 26, 2016).
3 Norelus v. Denny’s, Inc., 628 F.3d 1270, 1281 (11th Cir. 2010)(quoting Peterson v. BMI Refractories, 124 F.3d
1386, 1395 (11th Cir. 1997)) (internal quotations omitted).
Case 3:20-cv-00007-CAR Document 47 Filed 01/11/22 Page 3 of 3
egregious that it is tantamount to bad faith.”4 “Bad faith is an objective standard that is
satisfied when an attorney knowingly or recklessly pursues a frivolous claim.”5
There is no evidence that Plaintiff brought this case in bad faith and for purposes
of harassment or that Plaintiff’s attorney sought to multiply the proceedings or engaged
in bad faith. On the contrary, Plaintiff and her attorney brought this suit in good faith
after Defendants billed her for medical services, she paid $1,100.00 toward her bill, and
then Defendants twice filed suit in state court for the entire bill despite the fact she paid
the $1,100.00 portion. Although this Court ultimately ruled against Plaintiff on summary
judgment, “something more than a lack of merit is required” for a finding of bad faith.6
Defendants have failed show anything more than a lack of merit.
For the reasons stated above, the Court DENIES Defendants’ Motion for
Attorneys’ Fees [Doc. 45].
SO ORDERED, this 11th day of January, 2022.
S/ C. Ashley Royal ________________
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
Id. at 1282 (quoting Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1239 (11th Cir. 2006)) (internal
5 Peer v. Lewis, 606 F.3d 1306, 1314 (11th Cir. 2010).
6 Amlong & Amlong, P.A., 500 F.3d at 1242.
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