United States of America v. Burkett

Filing 37

ORDER RULING ON REPORT AND RECOMMENDATION adopting 30 Report and Recommendation, granting 23 Motion for Summary Judgment filed by United States of America. Signed by Honorable J Michelle Childs on 11/7/16. (alew, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
United States of America,

)
)
Plaintiff,
)
v.
)
)
Zachery Burkett,
)
)
Defendant.
)
____________________________________)

Civil Action No. 8:15-cv-02011-JMC

Order

Plaintiff (“United States of America”) filed this action alleging that Defendant (“Zachary
Burkett”) has failed to repay student loans. (ECF No. 1.) On April 25, 2016, Plaintiff filed a
Motion for Summary Judgment. (ECF No. 23.) After Defendant failed to timely respond, the
court extended the response deadline to June 27, 2016. (See ECF No. 30.) Nonetheless,
Defendant failed to timely respond to the Motion. (See id.)
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to
United States Magistrate Judge Jacquelyn D. Austin, for pre-trial handling. On August 30, 2016,
the Magistrate Judge issued a Report and Recommendation (“Report”) recommending that
Plaintiff’s motion for summary judgement be granted. (ECF No. 30.)
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court. The recommendation has no presumptive weight. The
responsibility to make a final determination remains with this court. See Matthews v. Weber, 423
U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those
portions of the Report to which specific objections are made, and the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge’s recommendation, or recommit the matter

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with instructions. See 28 U.S.C. § 636 (b)(1). Objections to a Report and Recommendation must
specifically identify portions of the Report and the basis for those objections. Fed. R. Civ. P.
72(b). “[I]n the absence of a timely filed objection, a district court need not conduct a de novo
review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
316 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). Failure to timely file
specific written objections to a Report will result in a waiver of the right to appeal from an Order
from the court based upon the Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155
(1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984).
Finding no clear error on the record, the court adopts the Report of the Magistrate Judge
granting Plaintiff’s Motion for Summary Judgment. Relying on Plaintiff’s Affidavit in Support
in of Plaintiff’s Calculation of Damages (ECF No. 34), the court holds that Plaintiff is entitled to
judgment in the amount of $255,117.53.
Additionally, the Higher Education Act of 1965, as amended, provides that a borrower
who has defaulted on his or her student loan is required to pay “reasonable collection costs.”
United States v. Milford, C/A No. 2:15-cv-02009-RMG, ECF No. 63 at 1 (D.S.C. Sept. 19, 2016)
(citing 20 U.S.C. § 1091a(b)(1)). Because the statute leaves “reasonable collection costs”
undefined, the court defers to the Department of Education’s interpretation of the term, if it is
found to be reasonable. Id. (citing Chevron U.S.A. Inc. v. Nat. Res. Defense Council, Inc., 467
U.S. 837, 842–43 (1984)). The Department of Education has interpreted “collection costs” to
include attorneys’ fees incurred in bringing an action to recover student loans. Id. (citing 34

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C.F.R. § 682.410(b)(2)). Therefore, attorneys’ fees are a component of “reasonable collection
costs” under 20 U.S.C. § 1091a. Milford, C/A No. 2:15-cv-02009-RMG, ECF No. 63 at 1.
Here, having carefully considered Plaintiff’s Affidavit of Attorneys’ Fees, in light of the
factors set forth in Barber v. Kimbrell’s, Inc., 577 F.2d 216 (4th Cir. 1978)1, the court finds
Plaintiff’s request appropriate. (See ECF No. 34-1); see also Local Civil Rule 54.02(A) (D.S.C).
Specifically, the court notes that Defendant has not filed any objections to Plaintiff’s
calculations. Additionally, the court finds that Plaintiff’s hourly rate of $165.00 (see ECF No.
34-1 at 2, 5) is appropriate in this case. Milford, C/A No. 2:15-cv-02009-RMG, ECF No. 63 at
2–3 (finding a $165 hourly rate to be appropriate in a contested debt collection action in South
Carolina federal court). However, the court has reviewed the time sheets and has observed an
inconsistency between the hours charged on the time sheet and the hours asserted by Ms. Ryan in
her affidavit. Specifically, the time sheet shows that Ms. Ryan charged 0.6 hours for her work on
this case, while in her affidavit she claims that she spent 6.6 hours working on the case. (See
ECF Nos. 34-1 at 5, 34-2 at 1.2) Given this inconsistency, the court will err on the side of caution
and recalculate the attorneys’ fees according to the timesheet. Consequently, the court awards

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Barber adopted the following factors: 1) the time and labor expended; (2) the novelty and
difficulty of the questions raised; (3) the skill required to properly perform the legal services
rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary
fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time
limitations imposed by the client or circumstances; (8) the amount in controversy and the results
obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the
case within the legal community in which the suit arose; (11) the nature and length of the
professional relationship between attorney and client; and (12) attorneys' fees awards in similar
cases. 577 F.2d at 226 n.28.
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The court observes that the timesheet shows that Ms. Ryan worked additional uncharged hours
and finds it entirely plausible that Ms. Ryan worked the 6.6 hours asserted in her affidavit. Thus,
the court invites Plaintiff to correct this inconsistency.
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Plaintiff $874.50 in attorneys’ fees. (See ECF Nos. 34-1, 34-2.)3 Additionally, the court awards
Plaintiff $141.26 in costs, and post-judgment interest. (ECF. No. 34 at 2.)
For the foregoing reasons, the court GRANTS Plaintiff’s Motion for Summary Judgment
(ECF No. 23), ADOPTS the Report and Recommendation (ECF No. 30), and AWARDS
Plaintiff a judgment in the amount of $255,117.53, $874.50 in attorneys’ fees, $141.26 in costs,
and post-judgment interest.
IT IS SO ORDERED.

United States District Judge
November 7, 2016
Columbia, South Carolina

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Mr. Wilcox receives $775.50 in attorneys’ fees (4.7 hours times the $165 hourly rate), while
Ms. Ryan receives $99 in attorneys’ fees (0.6 hours times the $165 hourly rate). Thus, the total
amount of attorneys’ fees is $874.50.
4