Mills v. Turner

Filing 26

Judge Mark L. Wolf: "...[I]t is hereby ORDERED that: 1. The attached Report and Recommendation (Docket No. 24) is ADOPTED and INCORPORATED in this Memorandum. 2. Plaintiff's Motion for Summary Judgment is ALLOWED with respect to Count Two a nd the overshadowing §1692g claim in Count One, and DENIED with respect to Count Three and the §1692g(a)(4) claim in Count One. 3. Count Three is deemed WITHDRAWN. 4. Plaintiff's request for $1,000 in statutory damages, $59,9 5 in costs, and $10,865.50 in attorney's fees is ALLOWED. 5. Defendant's Motion for Summary Judgment (Docket No. 21) is DENIED. 6. Judgment shall enter for plaintiff in accordance with this Order." ORDER entered granting in part and denying in part 20 Motion for Summary Judgment; denying 21 Motion for Summary Judgment; adopting Report and Recommendations re 24 Report and Recommendations. (Attachments: # 1 Report and Recommendation) (Bono, Christine)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

RONNIE MILLS, AS EXECUTOR OF
THE ESTATE OF CINTOWAY MILLS,
DECEASED,
PLAINTIFF,
V.

C. A. No. 15-13267-MLW

CHARLES TURNER,
DEFENDANT.

MEMORANDUM AND ORDER

WOLF, D.J.

August 25, 2017

On November 29, 2016, plaintiff Ronnie Mills, as executor of

the estate of Cintoway Mills, filed an amended complaint alleging
that defendant Charles Turner violated the Fair Debt Collection

Practices Act, 15 U.S.C. §§ 1692 et seq. (the "FDCPA"). The three-

count amended complaint alleges the following causes of action

against defendant: (1) failure to send a debt validation notice
("Validation Notice") in violation of 15 U.S.C. §§1692g (Count

One); (2) misrepresentation in connection with the collection of
a debt in violation of 15 U.S.C. §§1692e (Count Two); and (3)
unfair or unconscionable means to collect or attempt to collect a

debt in violation of 15 U.S.C. §§ 1692f (Count Three).

Plaintiff

seeks statutory damages, costs and attorney's fees.
Plaintiff filed a motion for summary judgment on all counts.
Defendant filed a cross motion for summary judgment.

In a July 10, 2017 Report and Recommendation (the "R&R")^ the

Magistrate Judge recommended that the plaintiff's summary judgment
motion be: allowed

with respect to Count Two and the §1692g

overshadowing claim in Count One; denied as to Count Three and the
§1692g(a)(4) claim in Count One; and denied without prejudice as
to the request for statutory damages, costs and attorney's fees.
The Magistrate Judge ordered plaintiff to advise the court within
14 days from the date of the Report and Recommendation whether he
wants to proceed with Count Three or voluntarily dismiss that
count, and whether he wishes to proceed to trial regarding the

§1692g(a)(4) aspect of his claim in Count One. See R&R at 16.
to

these

unresolved

claims,

the

Magistrate

Judge

Due

recommended

denying without prejudice plaintiff's request for damages, costs
and attorney's fees. Id., at 23. The Magistrate Judge further
recommended that the defendant's motion for summary judgment be
denied.

The plaintiff did not report as ordered concerning whether he

wishes to proceed with regard to the remaining basis for his claim
in Count One concerning the Validation Notice or Count Three.
Plaintiff

submitted

Recommendation.

one

objection

Specifically,

to

plaintiff

the

Report

objected

to

and

the

recommended denial of his §1692g(a)(4) claim in Count One.

Rule 72(b)(3)of the Federal Rules of Civil procedure requires
the court to review "de novo any part of the magistrate judge's

disposition that has been properly objected to." "[A party is] not
entitled to a de novo review of an argument never raised " before

the magistrate judge. Borden v. Sec'y of Health & Human Servs.,
836 F.2d

4, 6 (1st Cir. 1987). "Parties must take before the

magistrate, 'not only their best shot but all of their shots.'"
Id.

(quoting

Singh

v.

Superintending

Sch.

Comm.

Of

City

of

Portland, 593 F. Supp. 1315, 1318 (D. Me. 1984). Waiver of de novo

review by failing to file proper objections does not entitle a

party to "some lesser standard" of review. Thomas v. Arn, 474 U.S.
140, 149-50 (1985); see also Costa v. Hall, 2010 WL 5018159, at
*17 (D. Mass. Dec. 2, 2010) ("Absent objections, the court may

adopt the report and recommendation of the magistrate judge.").
However,

review

by

the

court

in

such

circumstances

is

not

prohibited, and some level of oversight, even if not de novo, is
encouraged. See Henderson v. Carlson, 812 F.2d 874, 878 (3rd Cir.
1987).

The court finds the Report and Recommendation to be thorough

and persuasive. It is, therefore, being incorporated in this
Memorandum

and

adopted.

Accordingly,

plaintiff's

motion

for

summary judgment is being allowed in part and denied in part. In

addition, plaintiff's request for statutory damages, costs and
attorney's fees is being allowed. Defendant's motion for summary
judgment is being denied.

The motion for summary judgment on Count One is being allowed

with regard to the §1692g overshadowing claim, as to which no

objection has been made, and on Count Two. The §1692g(a)(4) claim
in Count One is being dismissed. Plaintiff did not report that he

wished to proceed to trial on that claim. In any event, the
§1692g(a)(4) claim is moot because granting summary judgment on
the §1692g claim means that judgment will enter for plaintiff in
Count One. Cf. Lamb v. M&M Associates Inc., 1998 WL 34288694, at

*6 (S.D. Ohio, 1998)(holding that an overshadowing argument is
moot when the court has concluded as a matter of law that the

requisite

validation

notices

were not included in collection

letter).

In Count Three, plaintiff alleges that defendant violated the

§1962f prohibition on "unfair or unconscionable means to collect
or attempt to collect [a] debt". R&R at 21-23.
Judge

explained,

because

he

relies

plaintiff
on

the

cannot
same

recover

conduct

used

As the Magistrate
under

Count

Three

to

establish

his

§1692(e) claim in Count Two. See id.

The

Magistrate

Judge

correctly

concluded

that

§1962f

prohibits unfair and unconscionable conduct not covered by any
other

section

Consultants

of

Inc.,

the

36

FDCPA.

See

id.;

F.Supp.

3rd

217,

Davis

228

v.

(D.

Diversified

Mass.

2014);

Fiorenzano v. LVNV Funding, LLC, 21012 WL 256425, at *5.). Because

defendant did not raise this argument in seeking summary judgment

on Count Three, the Magistrate Judge ordered that plaintiff advise
the court within 14 days of the Report and Recommendation as to

whether he wished to proceed with Count Three or voluntarily
dismiss it. Id., at 23. Plaintiff did not respond to that order.

Therefore, the court infers that plaintiff does not wish to proceed
on

Count

Three,

which

is

unmeritorious,

and

is

deeming

it

withdrawn.

The Magistrate Judge denied without prejudice plaintiff's
request for damages because Count Three remained pending. As Count
Three

has

been

resolved,

the

issues

of

damages,

costs,

and

attorney's fees are now ripe for decision. See Mclnnis-Misenor v.
Maine Medical Center, 319 F.3d 63, 69(lst Cir., 2003).
Section 1692k(a) allows a prevailing plaintiff to recover

"the costs of the action, together with a reasonable attorney's

fee as determined by the court. . . " as well as statutory damages

of up to $1,000. Further, "[a]n award of attorney's fees to
successful plaintiffs under the FDCPA is obligatory." French v.
Corporate Receivables Inc., 489 F.3d 402, 403 (1st Cir. 2007)

(citing Zagorski v. Midwest Billing Serv., Inc., 128 F.3d 1164,
1166 (7th Cir. 1997); Emanuel v. Am. Credit Exch., 870 F.2d 805,

809 (2d Cir.1989).). "That successful plaintiffs are entitled to
a fee award under the FDCPA does not mean, however, that they are

entitled to the amount requested; they are entitled to what is
reasonable

under

the

circumstances." French,

489

F.3d

at

404

(citing Carroll v. Wolpoff & Abramson, 53 F.3d 626, 629 (4th Cir.
1995); de Jesus v. Banco Popular de Puerto Rico, 918 F.2d 232,

233-34

(1st

Cir.1990)).

attorney's fees,

courts

To

determine

utilize

the

reasonableness

the "lodestar

of

method," which

calculates the number of hours reasonably expended on the subject

matter multiplied by a reasonable hourly rate. See Hensley v.
Eckerhart, 461 U.S. 424, 433-34 (1983); Perdue v. Kenny A., 130
S.Ct. 1662, 1672-73 (2010); Edge v. Norfolk Fin. Corp. & Co., WL
2323193, at *2(D. Mass. 2005).

Plaintiff seeks $1,000 in statutory damages, $59.95 in costs,

and $10,865.50 in attorney's fees. Plaintiff calculated attorney's

fees using the lodestar method and has submitted documentation
that establishes the reasonableness of the request. See Pis' Mot.

and Mem. Summ. J., Ex. E. Defendant in his submission to the

Magistrate Judge did not challenge the reasonableness of the
amounts requested. It is too late to do so now. See Borden, 836
F.2d at 6; Singh, 593 F. Supp. at 1318. Therefore, the court is

allowing plaintiff's request for $1,000 in statutory damages,
$59.95 in costs, and $10,865.50 in attorney's fees.

In view of the foregoing, it is hereby ORDERED that:

1. The attached Report and Recommendation (Docket No. 24) is
ADOPTED and INCORPORATED in this Memorandum.

2. Plaintiff's Motion for Summary Judgment is ALLOWED with

respect to Count Two and the overshadowing §1692g claim in Count

One, and DENIED with respect to Count Three and the §1692g(a)(4)
claim in Count One.

3. Count Three is deemed WITHDRAWN.

4.

Plaintiff's

request

for

$1,000

in

statutory

damages,

$59,95 in costs, and $10,865.50 in attorney's fees is ALLOWED.

5. Defendant's Motion for Summary Judgment (Docket No. 21) is
DENIED.

6. Judgment shall enter for plaintiff in accordance with this
Order.

UNITED STATES DISTRICT JUDGE

^