Filing 20

ORDER granting ECF No. 9 Plaintiff's Motion for Attorney Fees and Costs. Plaintiff is awarded attorney's fees in the amount of $4,900.00. Plaintiff is directed to file a bill of costs pursuant to Local Rule of Civil Practice 54-1 on or before 2/10/2017. Signed by Judge Howard D. McKibben on 02/03/2017. (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 11 12 13 14 15 JUDY A. WILLIAMS, ) ) Plaintiff, ) ) vs. ) ) PINNACLE SERVICES, INC. dba ) SUMMIT COLLECTIONS SERVICES, ) ) Defendant. ) ) _________________________________ ) 3:16-cv-00597-HDM-WGC ORDER 16 Before the court is the plaintiff’s motion for attorney’s fees 17 (ECF No. 9). Defendant has opposed (ECF No. 15), and plaintiff has 18 replied (ECF No. 17). 19 Plaintiff filed her complaint in this action on October 17, 20 2016, alleging three causes of action under the Fair Debt 21 Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. 22 Plaintiff’s complaint sought actual and statutory damages as to 23 each claim for relief. 24 On October 26, 2016, defendant served plaintiff with an offer 25 of judgment pursuant to Federal Rule of Civil Procedure 68. 26 Defendant offered to allow judgment to be entered against it in the 27 amount of $2,500.00. On November 7, 2016, plaintiff accepted the 28 1 1 offer of judgment, and on November 18, 2016, she filed notice of 2 acceptance of the offer of judgment with the court.1 3 court thereafter entered judgment against defendant pursuant to the 4 terms of the offer. The clerk of 5 On December 1, 2016, the plaintiff filed a motion for 6 attorney’s fees and costs, which seeks an award of fees in the 7 amount of $5,337.00 and an award of costs in the amount of $437.00. 8 9 Plaintiff filed her motion pursuant to Federal Rule of Civil Procedure 54. Federal Rule of Civil Procedure 54(d)(1) allows an 10 award of costs to the prevailing party. 11 Procedure 54(d)(2) sets forth the procedure for obtaining an award 12 of attorney’s fees but does not provide the substantive basis for 13 such an award. 14 statute, or contract that authorizes such an award. 15 Commc’ns, Inc. v. Am. Tel & Tel. Co., 197 F.3d 1276, 1281 (9th Cir. 16 1999). 17 Federal Rule of Civil Fees are recoverable only if there is a rule, See MRO Here, plaintiff seeks an award of costs and fees pursuant to 18 15 U.S.C. § 1692k(a)(3). 19 case of any successful action to enforce . . . liability” under the 20 FDCPA, the defendant is liable to the plaintiff for “the costs of 21 the action, together with a reasonable attorney’s fee as determined 22 by the court.” 23 FDCPA case. 24 (9th Cir. 2008). Section 1692k(a)(3) provides that “in the Attorney’s fees are thus mandatory in a successful Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 25 26 27 28 1 Defendant takes issue with plaintiff’s choice to wait eleven days from accepting the offer to filing it with the court, arguing that she did so to gain more time to file her motion for attorney’s fees. However, Rule 68 provides that either party may file the notice with the court. Nothing therefore precluded defendant from filing the notice itself to start the clock. 2 1 Defendant argues that plaintiff is not entitled to an award of 2 attorney’s fees and costs because defendant intended for its offer 3 to include both. 4 costs, defendant argues that it was inclusive of both because it 5 offered plaintiff $2,500.00 when the most she could have recovered 6 under the statute was $1,000.00. 7 Although the offer does not mention fees and The law is clearly established that where a Rule 68 offer is 8 silent on costs, the court may award an additional amount to cover 9 the prevailing party’s costs. 10 (1985). 11 Marek v. Chesny, 473 U.S. 1, 6 included costs is unpersuasive. 12 Accordingly, the argument that the offer implicitly With respect to fees, defendant relies on a Sixth Circuit 13 decision, McCain v. Detroit II Auto Fin. Ctr., 378 F.3d 561 (6th 14 Cir. 2004), which found that an offer that did not mention 15 attorney’s fees was nevertheless inclusive of them. 16 McCain, the complaint sought attorney’s fees with respect to every 17 claim, and the offer was made to settle “all claims and causes of 18 action.” 19 unambiguously included attorney’s fees, which were part of the 20 claims and causes of action pled in the complaint. 21 plaintiff did not seek attorney’s fees in the complaint, nor did 22 the offer state that it covered all claims. 23 distinguishable from this case. 24 Woodburn, Inc., 122 F.3d 830, 833 (9th Cir. 1997), the Ninth 25 Circuit held that a Rule 68 offer that was silent as to attorney’s 26 fees did not preclude the plaintiff from seeking attorney’s fees 27 pursuant to the relevant statute. 28 waiver or limitation” of attorney’s fees in a Rule 68 offer “must However, in The Sixth Circuit thus concluded that the offer Here, the McCain is thus However, in Nusom v. Comh The court made clear that “any 3 1 be clear and unambiguous” and that any ambiguities in the offer 2 “are construed against the offeror.” 3 147 F.3d 617, 623 (7th Cir. 1998). 4 which was silent as to attorney’s fees, did not clearly waive or 5 limit attorney’s fees. 6 Id.; see also Webb v. James, It concluded that the offer, Nusom, 122 F.3d at 833-34. Here, the offer was silent as to attorney’s fees and thus did 7 not unambiguously waive or limit fees. 8 plaintiff did assert claims for statutory damages, which are capped 9 at $1,000.00, she also asserted claims for actual damages. Additionally, while The 10 defendant has not established that plaintiff could not have 11 recovered actual damages. 12 include attorney’s fees and plaintiff is therefore entitled to an 13 award of fees pursuant to 15 U.S.C. § 1692k(a)(3). 14 The court concludes the offer did not In making an award of attorney’s fees, the court begins by 15 calculating the “lodestar.” 16 224 F.3d 1014, 1028 (9th Cir. 2000). 17 multiplying the number of hours the prevailing party reasonably 18 expended on the litigation by a reasonable hourly rate. 19 determining the hours to be included in the lodestar, the court 20 should exclude hours that are “excessive, redundant, or otherwise 21 unnecessary.” 22 Cir. 2009). 23 Caudle v. Bristow Optical Co., Inc., The lodestar is reached by Id. In McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th In most cases, the lodestar is presumptively a reasonable fee 24 award. 25 (9th Cir. 2001). 26 may “adjust the lodestar to account for other factors that are not 27 subsumed within it.” 28 Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 However, if the circumstances warrant, the court Id. Those factors are: (1) the time and labor required; (2) the novelty and 4 1 2 3 4 5 6 difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 7 Cairns v. Franklin Mint Co., 292 F.3d 1139, 1158 (9th Cir. 2002) 8 (citing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th 9 Cir. 1975)). The court need not consider all factors – “only those 10 called into question by the case at hand and necessary to support 11 the reasonableness of the fee award.” Id. 12 Plaintiff’s counsel seeks an hourly rate of $350 per hour.2 13 Defendant argues that $350 is not a reasonable hourly rate because 14 the complaint is riddled with inaccurate citations and 15 misrepresentations of the law and the facts. The court concludes 16 that $350 an hour is a reasonable and customary hourly rate for the 17 type of work performed in this case by counsel. 18 Counsel seeks compensation for 14 hours of work.3 This 19 includes 5.5 hours spent researching and drafting the motion for 20 attorney’s fees and reply, which is compensable as part of the 21 award. See Camacho, 523 F.3d at 981. Defendant argues that some 22 23 24 25 26 27 28 2 Plaintiff’s motion indicates that counsel is seeking a “blended rate” of $330 for nine hours of work completed before the filing of the motion for attorney’s fees. This is based on a charge of $2,975 for nine hours of work performed. However, an examination of the billing invoice shows that there was actually no charge for half an hour of the nine hours sought, meaning that the hours actually charged to the plaintiff were 8.5. At a rate of $350 an hour, the total charge sought for 8.5 hours of work is $2,975. Under either analysis, the result is the same. 3 See supra n.2. 5 1 2 of counsel’s hours were not reasonable. First, defendant argues that plaintiff’s counsel at one time 3 worked for defendant’s manager and owner, Brian Chew, and that the 4 letters sent by defendant to plaintiff which are the subject of the 5 complaint were drafted and used by counsel during that time. 6 Defendant therefore argues that counsel’s spending 3.75 hours that 7 included reviewing collections letters that he drafted was 8 unreasonable. 9 basic FDCPA research that anyone experienced in FDCPA practice 10 11 In addition, defendant argues, this time included should already know. The court finds that 3.75 hours, which included review of the 12 letters along with a substantial amount of other work related to 13 the case, was reasonable. 14 the relevant letters did not mean he should not review them and 15 apply them to this case. 16 The fact that counsel may have drafted Second, defendant argues that counsel improperly charged for 17 work that related to plaintiff’s bankruptcy. 18 charges for one hour spent preparing documents that would allow 19 plaintiff to file the instant action despite her pending 20 bankruptcy, and some additional time (included in a 1.5 hour block) 21 explaining to plaintiff the repercussions of accepting the 22 defendant’s offer of judgment on her bankruptcy. 23 concludes this time was reasonable and necessarily incurred in 24 connection with this case. 25 Counsel submitted The court Finally, defendant argues that counsel spent time reviewing 26 emotional distress issues but that plaintiff did not assert a claim 27 for emotional distress in her complaint. 28 complaint sought actual damages, which can include damages for 6 However, plaintiff’s 1 emotional distress. 2 Lauinger, LLC, 637 F.3d 939, 957 (9th Cir. 2011). 3 concludes that it was reasonable for counsel to spend time 4 discussing potential emotional distress damages with plaintiff 5 before she accepted the offer of judgment. 6 See McCollough v. Johnson, Rodenburg & The court The court finds that all hours and the hourly rate submitted 7 by counsel for compensation are reasonable. 8 lodestar in this case is $4,900.00, representing 14 hours of work 9 at $350.00 per hour. 10 11 Therefore, the The court finds that other arguments by the defendant are without merit. 12 In accordance with the foregoing and pursuant to 15 U.S.C. § 13 1692k(a)(3), the plaintiff’s motion for attorney’s fees and costs 14 (ECF No. 9) is hereby GRANTED. 15 fees in the amount of $4,900.00. 16 directed to file a bill of costs pursuant to Local Rule of Civil 17 Practice 54-1 on or before February 10, 2017. Plaintiff is awarded attorney’s As to costs, plaintiff is 18 IT IS SO ORDERED. 19 DATED: This 3rd day of February, 2017. 20 21 ____________________________ UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 7

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