Grandberry v. Medical-Commercial Audit, Inc.

Filing 109

OPINION, MEMORANDUM AND ORDER- IT IS ORDERED that Defendants Motion for Attorneys Fees, [Doc. No. 98 ], is denied.. Signed by District Judge Henry Edward Autrey on 06/22/2020. (AAT)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

NAKEITRA GRANDBERRY,

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Plaintiff,
vs.
MEDIDAL-COMMERCIAL AUDIT,
INC., d/b/a MCA MANAGEMENT,
Defendant.

Case No. 4:17CV2531 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion for Attorney’s Fees,
[Doc. No. 98]. Plaintiff opposes the motion. The motion is fully briefed and ready
for adjudication. For the reasons set forth below, the Motion is denied.
Plaintiff filed this action against Defendant for alleged violations of the Fair
Debt Collections Practices Act, (“FDCPA”), 15 U.S.C. § 1692, et seq. Plaintiff
claimed she received a debt collection letter from Defendant threatening to report
her account to the credit bureaus if Defendant did not hear from her in 15 days
from the date of the notice. Plaintiff alleged the statement was abusive and
coercive and was made with the intent of scaring Plaintiff into making payment,
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and that the statement was false and misleading because Defendant never reported
the debt to the credit bureaus.
Plaintiff also alleged that Defendant charges customers a $5.00 convenience
fee for payments made through Defendant’s website. Plaintiff alleged the
convenience fee was not authorized by the agreement creating the debt or
permitted by law, and that the addition of the fee was an attempt to collect an
amount not owed by Plaintiff.
After a motion to dismiss and motions for summary judgment were denied,
the trial in this case was set for June 10, 2019.
On May 24, 2019, Plaintiff’s counsel filed a Motion to Continue the trial
date due to religious observations. Defendant did not consent to Plaintiff’s
continuance request.
On May 28, 2019, the Court granted Plaintiff’s motion to continue the trial
date. On June 6, 2019, the Court then set the case to August 19, 2019. On
August 9, 2019, the Court, sua sponte, reset the trial to August 21, 2019. Due to
Defendant’s counsel conflict, the Court reset the trial first to September 16, 2019
and then to October 22, 2019.
On the day of trial Plaintiff did not appear, nor did her lead counsel.
Rather, local counsel appeared. She advised counsel for Defendant that she
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intended to read Plaintiff’s deposition testimony and asked defense counsel for his
copy. Defense counsel ask her to enter into a consent judgment. After consulting
with lead counsel, local counsel agreed to the entry of a consent judgment in
Defendant’s favor.
Defendant moves attorney’s fees pursuant to Section 1692k(a)(3) and 28
U.S.C § 1927. Section 1692k(a)(3) provides in relevant part:
[o]n a finding by the court that an action under [the FDCPA] was
brought in bad faith and for the purpose of harassment, the court may
award to the defendant attorney[s'] fees reasonable in relation to the
work expended and costs.”
This Court has held that “[s]ection 1692k(a)(3) should be construed
narrowly as not to discourage private litigation under the FDCPA.” Velez v.
Portfolio Recovery Associates, Inc., 881 F.Supp.2d 1075, 1085 (E.D.Mo.2012)
(citing Kondratick v. Beneficial Consumer Disc. Co., 2006 WL 305399, at * 10 n.
4 (E.D.Pa. Feb.8, 2006)). “For an award to be made, ‘there must be evidence that
the plaintiff knew that his claim was meritless, and that plaintiff pursued his claims
with a purpose of harassing the defendant.’” Id. (quoting Allers–Petrus v.
Columbia Recovery Grp., LLC., No. C08–5533FDB, 2009 WL 1160061, at *1
(W.D.Wash. Apr.29, 2009) (quoting Gorman v. Wolpoff & Abramson, LLP, 435
F.Supp.2d 1004, 1013 (N.D.Cal.2006)). To prevail on a motion for an award of

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attorney's fees in this context, Defendant bears the burden of proof that plaintiff's
complaint was filed in bad faith and for the purpose of harassment. Allers–Petrus,
2009 WL 1160061, at *1.
Section 1927 states:
Any attorney or other person admitted to conduct cases in any court of the
United States or any Territory thereof 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.
28 U.S.C.A. § 1927.
Defendant asserts that Plaintiff never intended on being present for trial, nor
did her lead attorney. Defendant further argues that Plaintiff was not even aware
the suit had been filed and that she never had any contact with lead counsel who
entered his appearance in this case. Further, Defendant questions the veracity of
lead counsel’s representations of his religious observances.
The Court was concerned with the accusations. Because of the magnitude of
the substance of Defendant’s claims, the Court allowed Plaintiff and her lead
counsel to supplement the response to the attorney’s fees motion. Counsel and
Plaintiff have both filed declarations detailing the inaccuracies of Defendant’s
claims. The Court is satisfied that neither Plaintiff nor her lead attorney have
misrepresented anything to the Court. Likewise, the declarations establish that
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Plaintiff had contact with lead counsel’s law firm, if not specifically with him.
Counsel has not misrepresented his religious observances to the Court. The fact
that Plaintiff and lead counsel did not appear for trial does not establish any
improper activities. At best, it is a failure to prosecute, for which Defendant could
have asked for dismissal based on Plaintiff failure to appear. Defendant was able
to achieve a better result with the consent judgment.
While the Court recognizes the frustration Defendant and its counsel have
experienced throughout the course of this proceeding, there is no evidence that
either Plaintiff or her lead counsel did anything untoward. On the record before it,
this Court concludes that an award of attorney's fees and costs is not justified.
Although ultimately Plaintiff agreed to a consent judgment in favor of Defendant,
there is no evidence that Plaintiff's claim was filed in bad faith for the purpose of
harassing Defendant. Defendants do not offer any direct evidence of bad faith or
purpose to harass by plaintiff. Cf. Scroggin v. Credit Bureau of Jonesboro, Inc., ––
– F.Supp.2d ––––, 3:12CV 128 SWW, 2013 WL 5306675 (E.D.Ark. Sept.20,
2013) (finding that plaintiff brought action in bad faith and for the purpose to
harass defendant and awarding defendant attorney's fees where numerous posts and
e-mails by plaintiff evidenced “his dishonesty of belief or purpose, his dishonest
and oppressive conduct, his hatred, ill will, and spirit of revenge towards”
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defendant and that plaintiff “demeaned and abused the judicial process and he
perverted the purposes of the FDCPA and AFDCPA.”)
Accordingly,
IT IS ORDERED that Defendant’s Motion for Attorney’s Fees, [Doc. No.
98], is denied.
Dated this 22nd day of June, 2020.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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