Miller v. Asset Acceptance, LLC et al

Filing 19

Opinion and Order. Plaintiff's Motion for Award of Attorney Fees and Costs (Related Doc # 17 ) is granted in part. The Court awards Plaintiff Alfred Miller $8,241.00 in fees and costs. Judge Christopher A. Boyko on 9/18/2017.(H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ALFRED MILLER,
Plaintiff,
vs.
ASSET ACCEPTANCE, LLC, et al.,
Defendants.

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CASE NO. 1:16CV1007
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #17) of Plaintiff
Alfred Miller for an Award of Attorney Fees and Costs. For the following reasons, the Motion
is granted in part.
I. BACKGROUND
On February 10, 2014, Asset Acceptance filed a debt collection Complaint against
Miller in Shaker Heights Municipal Court. Miller filed a Counterclaim under the Fair Debt
Collection Practices Act (“FDCPA”),15 U.S.C. § 1692 et seq. On January 23, 2015, Asset
Acceptance moved to transfer the case to common pleas court on the grounds that the
Counterclaim exceeded the monetary jurisdiction of the municipal court. On February 12,

2015, the Shaker Heights Municipal Court Judge ordered the case transferred to common pleas
court “conditioned on counterclaim defendants’ providing this court on or before February 23,
2015, with a check for the common pleas court filing fee.” On March 27, 2015, the Shaker
Heights Municipal Court dismissed Miller’s Counterclaim because it exceeded the jurisdiction
of the court and ordered the case to proceed on Asset’s Complaint only. On April 27, 2015,
following a pretrial conference, Asset dismissed its Complaint against Miller without
prejudice.
On March 25, 2016, Miller filed an FDCPA Complaint against Asset and Attorney
Jeffrey Sobeck in Cuyahoga County Common Pleas Court, dropping a party and streamlining
the allegations from his earlier municipal court Counterclaim. On April 26, 2016, Defendants
Asset and Sobeck removed the matter to federal court. In the ensuing months, Defendants’
Motion for Judgment on the Pleadings was filed and fully briefed. Prior to a ruling by the
Court, Defendants made an Offer of Judgment which Miller accepted on October 31, 2016.
On December 13, 2016, the Court entered judgment in favor of Miller and against all
Defendants in the amount of $1,000, plus reasonable attorney’s fees, interest and costs.
Because the parties were unable to agree upon the amount of fees and costs, Miller now
moves for the Court’s determination of an award in compliance with 15 U.S.C.
§ 1692k(a)(3). Miller seeks a total of $13,395.00 in attorney’s fees and $336.00 in costs.
Asset objects, arguing: (1) Miller’s hours and costs expended in the municipal court are
not compensable in this case; (2) Miller should not have opposed Defendants’ Motion for
Judgment on the Pleadings and should not be compensated for those billable hours because his
claim was clearly time-barred; (3) Miller’s Complaint in the instant case is nearly identical to

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claims filed in other cases by the same counsel; so, the two hours charged for drafting this
Complaint are not compensable; and (4) Miller fails to show that his hourly rate is based upon
the prevailing market rate in the relevant community.
II. LAW AND ANALYSIS
The FDCPA mandates the award of reasonable attorney’s fees and costs to a prevailing
party. 15 U.S.C. § 1692k(a)(3); Lee v. Thomas & Thomas, 109 F.3d 302, 307 (6th Cir. 1997).
A reasonable fee is “adequately compensatory to attract competent counsel yet which avoids
producing a windfall for lawyers.” Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004)
(quoting Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999)).
The Supreme Court directs courts to calculate attorney’s fees under the “lodestar”
method. Blanchard v. Bergeron, 489 U.S. 87, 94 (1989); Pennsylvania v. Delaware Valley
Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986). The reasonable hourly rate is
multiplied by the number of hours reasonably expended on the litigation. Webb v. Bd. of
Educ. of Dyer Cnty., Tenn., 471 U.S. 234, 235 (1985) (emphasis in original); Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). The product of this calculation is known as the
“lodestar.” There is a strong presumption that the lodestar represents a reasonable fee.
Delaware Valley, 478 U.S. at 565.
“A district court has broad discretion to determine what constitutes a reasonable hourly
rate for an attorney.” Wayne v. Vill. of Sebring, 36 F.3d 517, 533 (6th Cir. 1994). The court is
guided by the “prevailing market rate [] in the relevant community,” Blum v. Stenson, 465 U.S.
886, 895 (1984), defined as “that rate which lawyers of comparable skill and experience can
reasonably expect to command,” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 350 (6th

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Cir. 2000).
Compensable hours
Pursuant to 15 U.S.C. § 1692k(a)(3), the prevailing party is entitled to an award of
attorney’s fees reasonably expended in the litigation. Miller admits that the Shaker Heights
Municipal Court dismissed his Counterclaim because it exceeded that Court’s jurisdiction.
(ECF DKT #17 at 4). Miller further admits that he simplified and streamlined his municipal
court Counterclaim and dropped a party before filing his FDCPA Complaint in Cuyahoga
County Common Pleas Court on March 25, 2016. Id. The within matter originated in
Cuyahoga County Common Pleas Court and was removed on the basis of federal question
jurisdiction.
Therefore, the Court agrees with Asset that the municipal court proceeding is separate
and independent from the pending proceeding. Moreover, the Court believes that permitting
Miller’s counsel to receive fees for work performed in a completely discrete, unsuccessful case
would run afoul of the intent of § 1692k(a)(3). Thus, Miller’s fee request will be limited to the
hours expended after January 7, 2016; so, 17.7 hours will be deducted. The costs will be
reduced by $180.00, the amount attributable to Shaker Heights Municipal Court. (See Miller’s
chart of fees and costs; ECF DKT #17-1).
Defendants’ Motion for Judgment on the Pleadings
Asset argues that Miller should not be awarded fees for time expended researching and
drafting an opposition brief to Asset’s Motion for Judgment on the Pleadings because Miller’s
claim was barred by the FDCPA’s one-year statute of limitations.
Asset’s Offer of Judgment was made and accepted before the Court made a ruling on

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the dispositive Motion. There was never a determination as a matter of law on the statute of
limitations bar. Attorneys are ethically and professionally obligated to defend the validity of
their clients’ asserted claims.
Therefore, the Court disagrees with Asset’s second objection and will not reduce
Miller’s requested fees on this basis.
Similar prior pleadings
Asset asserts that the instant Complaint is nearly the same as, or virtually identical to,
pleadings drafted by Miller’s counsel in other cases; so, the hours spent researching, reviewing
and drafting the Complaint should not be compensable.
Asset provides copies of pleadings filed by Miller’s counsel in Summit and
Montgomery Counties and identifies the duplicative language. However, the Court is loathe to
second-guess how an attorney litigates, unless the Court is aware of a violation of the rules of
practice or the rules of professional responsibility.
Once again, the Court disagrees with Asset’s third objection and will not reduce
Miller’s requested fees on this basis.
Reasonable hourly rate
Miller’s counsel’s customary rate is $300.00 per hour. In his Motion, Miller directs the
Court’s attention to fee awards in the Northern District of Ohio. For example, in Dobina v.
Carruthers, Case No. 5:09cv2426, 2010 WL 1796345 (N.D.Ohio May 3, 2010), a $300.00
hourly rate was found reasonable in an FDCPA matter. In an FDCPA fee case decided in
2016, an hourly rate of $400.00 was approved. (Mohn v. Goll, Case No. 4:15cv476 (N.D.Ohio
Mar. 31, 2016).

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The Court is not persuaded by Asset’s objection in this regard. The Court finds that
Miller’s counsel’s hourly rate is within the range upheld in this District. Moreover, although a
mere declaration of Miller’s attorneys’ customary rate is not evidence the Court would prefer,
the Sixth Circuit has found it is not an abuse of discretion to award attorney’s fees on that
basis. Dowling v. Litton Loan Servicing, 320 F.App’x 442, 447 (6th Cir. 2009).
III. CONCLUSION
For these reasons, the Motion (ECF DKT #17) of Plaintiff Alfred Miller for an Award
of Attorney Fees and Costs is granted in part. The amount of hours reasonably expended on
the litigation is reduced by 17.7 hours to 26.95 hours. The lodestar calculation is 26.95 hours
multiplied by $300.00 per hour, which comes to $8.085.00. The reasonable costs are reduced
by $180.00, for a total of $156.00. Therefore, the Court awards Plaintiff Alfred Miller
$8,241.00 in fees and costs.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: September 18, 2017

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