Wannamaker v. Jacobs Marsh, LLC

Filing 31

DECISION AND ORDER denying 27 Motion for Attorney Fees. Signed by Hon. Richard J. Arcara on 1/9/2012. (JMB)

UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK

BEN W ANNAMAKER,
Plaintiff,
DECISION AND ORDER
10-CV-946A
v.

JACOBS MARSH, LLC,
Defendant.

I.

INTRODUCTION
Pending before the Court is a motion (Dkt. No. 27) by plaintiff Ben

W annamaker for an award of attorney fees pursuant to the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §§ 1692–1692p. An award of attorney fees
is the only issue remaining in this case, since the parties have settled on the
merits. The redacted portion of the settlement agreement filed in the docket
contained no findings of liability but explicitly permitted plaintiff to request, and
defendant to dispute, attorney fees. Plaintiff accordingly has requested
$5,088.00 in total attorney fees. Defendant opposes the motion on the basis that
plaintiff’s request relies on excessively high hourly rates and estimates of time
spent drafting routine pleadings.

The Court has deemed the motion submitted on papers pursuant to Rule
78(b) of the Federal Rules of Civil Procedure (“FRCP”). For the reasons below,
the Court denies the motion.
II.

BACKGROUND
This case concerned defendant’s conduct in attempting to collect on an

alleged consumer debt. Because the complaint did not contain a lot of
background information, details concerning this debt are not available to the
Court. For example, the Court cannot determine from the information available
what kind of debt defendant attempted to collect and whether it communicated
that information to plaintiff; whether plaintiff acknowledged owing any kind of
debt, and if so, whether he agreed with defendant’s characterization of it; and
whether the parties disputed the amount of the debt in question.1 Nonetheless,
plaintiff’s complaint, filed on November 22, 2010, does allege that defendant
called plaintiff’s relatives on multiple occasions without authorization from plaintiff.
Defendant discussed plaintiff’s debt during these phone calls. Also, defendant
allegedly told plaintiff’s mother that it was affiliated with the Salt Lake City, Utah
judicial system. Plaintiff accused defendant of violating multiple provisions of the

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The only details that the Court has about the alleged debt come from
plaintiff’s motion papers. In one sentence on the first page of the motion papers,
plaintiff described the alleged debt as “the underlying $1,300 debt originally owed
to W ells Fargo.” (Dkt. No. 27 at 1.)
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FDCPA, including provisions prohibiting harassment, deception, and
unauthorized disclosures to third parties.
After joinder of issue, the parties commenced discovery and mediation.
This phase of the litigation proceeded without incident, with one exception. The
parties had scheduled a mediation session for July 7, 2011. Defendant had to
cancel the mediation session almost immediately after it began because plaintiff’s
attorneys of record failed to appear, while a substitute attorney who did appear
was not licensed to practice in New York. Bad calendar management was the
only explanation that plaintiff’s counsel provided for the failure to appear.
Magistrate Judge Jeremiah J. McCarthy sanctioned plaintiff’s counsel in the
amount of $250 for the failure to appear. (Dkt. No. 24.) The parties did resume
mediation, however, and on September 9, 2011, the mediator notified the Court
that the case settled. (Dkt. No. 25.) To settle the case, defendant absolved
plaintiff of the debt in question in exchange for a discontinuance of the litigation.
Plaintiff never filed the settlement agreement with the Court, meaning that the
Court cannot determine whether defendant conceded liability for any of the
allegations in the complaint.
The only excerpt from the settlement agreement that plaintiff did file in the
docket allowed the parties to make the arguments that currently are pending with
respect to attorney fees. Specifically, Paragraph 5 of the settlement agreement
reads as follows:
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W annamaker will make an application to the Court seeking its
reasonable attorney’s fees. Jacobs will not dispute the fact that
W annamaker is entitled to make an application for reasonable
attorney’s [sic], but expressly reserves the right to contest the
amount, if any, of the reasonable attorney’s fees. W annamaker shall
not seek reasonable attorney’s [sic] for any work associated [sic] the
drafting and making of the application seeking attorney’s fees.
(Dkt. No. 27-1 ¶ 5.) In accordance with this provision, plaintiff filed the pending
motion for attorney fees on November 7, 2011. Plaintiff’s counsel seeks
reimbursement of $5,088.00 covering 30.4 hours of time, at hourly rates of $205
for attorneys and $75 for paralegals and clerical staff. Defendant raises several
objections to the amount that plaintiff’s counsel has requested. Defendant argues
that plaintiff’s counsel should not receive any attorney fees because they
intentionally rejected an earlier settlement offer of $3,150—$1,850 in cash and
$1,300 in debt discharge—solely to keep churning the file and to keep generating
fees. Defendant argues further that plaintiff’s counsel has overbilled for the
drafting of a form complaint that it files regularly in various jurisdictions. Finally,
defendant points to prior decisions from this Court establishing lower hourly rates
than plaintiff’s counsel has claimed here.
III.

DISCUSSION
Although the parties have argued in detail over plaintiff’s counsel’s itemized

billing, the Court’s immediate concern is whether the terms of the settlement
agreement allow for any award of attorney fees at all. The FDCPA authorizes
plaintiffs to receive “in the case of any successful action to enforce the foregoing
liability, the costs of the action, together with a reasonable attorney’s fee as
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determined by the court.” 15 U.S.C. § 1692k(a)(3) (emphasis added). As the
plain language of the FDCPA indicates, the event that triggers any consideration
of attorney fees is a “successful action” based on “liability,” which implies some
sort of finding of liability.
The prerequisite of a successful action causes two problems for plaintiff.
First, the parties have not provided the Court with any portion of the settlement
agreement except Paragraph 5, quoted in full above. The record contains no
evidence that the parties contemplated any admission of liability when they
settled. Cf. Walker v. Rash Curtis & Assocs., No. 2:10-cv-00106, 2010 W L
4157128, at *3 (E.D. Cal. Oct. 19, 2010) (“[N]othing in the Rule 68 Settlement
Offer indicates that Plaintiffs in any way conducted a ‘successful action to
enforce’ liability against Defendant under the FDCPA.”); see also Flegal v. First
Source Advantage, LLC, No. 10-CV-771, 2011 W L 1793171 (W .D.N.Y. May 9,
2011) (Arcara, J.) (awarding attorney fees where an offer of judgment of $1,001
at the least implied an admission of statutory damages).
Second, nothing happened in this case that the Court could consider a
“successful” prosecution of plaintiff’s claims of liability. Although Court-ordered
mediation was involved, the parties reached a voluntary settlement. That
settlement, as far as the Court knows, contained no admissions of liability.
Plaintiff did not otherwise establish liability through a verdict, finding of fact, or
other ruling. Courts that award attorney fees under the FDCPA require some sort
of vindication of plaintiff’s allegations before declaring a case a “successful action
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to enforce the foregoing liability.” See, e.g., Pipiles v. Credit Bureau of Lockport,
Inc., 886 F.2d 22, 28 (2d Cir. 1989) (“Because the FDCPA was violated, however,
the statute requires the award of costs and a reasonable attorney’s fee . . . .”)
(emphasis added) (citation omitted); Emanuel v. Am. Credit Exch., 870 F.2d 805,
809 (2d Cir. 1989) (“[B]ecause we now find a violation [of the FDCPA], [plaintiff]
should be awarded costs and reasonable attorney’s fees in amounts to be fixed in
the discretion of the district court.”). In this sense, the phrase “successful action
to enforce the foregoing liability” is analogous to the phrase “prevailing party”
used in other federal statutes that authorize awards of attorney fees. See
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532
U.S. 598, 605 (2001) (“A defendant’s voluntary change in conduct, although
perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks
the necessary judicial imprimatur on the change. Our precedents thus counsel
against holding that the term ‘prevailing party’ authorizes an award of attorney’s
fees without a corresponding alteration in the legal relationship of the parties.”);
Preservation Coalition of Erie County v. Fed. Trans. Admin., 356 F.3d 444, 451
(2d Cir. 2004) (“As examples of the types of actions that would not convey the
necessary imprimatur, the [Supreme] Court offered successful results obtained
through private settlement agreements, non-dispositive victories such as
surviving a motion to dismiss for lack of jurisdiction, prevailing over a motion to
dismiss for failure to state a claim upon which relief could be granted, or receiving

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an interlocutory ruling that reversed a dismissal for failure to state a claim.”)
(citing Buckhannon).
Under these circumstances, plaintiff has not proven that he prevailed on
any of the claims in this complaint so as to establish liability by defendant and to
make this case a “successful action” regarding that liability. W ithout some
alteration in the legal relationship between the parties, the provision of the
FDCPA authorizing awards of attorney fees does not apply here.
IV.

CONCLUSION
For all of the foregoing reasons, the Court denies plaintiff’s motion (Dkt.

No. 27).
SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: January 9, 2012

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