Johnson v. Equifax Information Services, LLC et al
MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that Plaintiff Brad Johnson's Motion to Dismiss Defendant Discover's Counterclaim (Dkt. 12 ) is hereby GRANTED. Defendant Discover's counterclaim for attorney's fees under 15 U.S.C. § 1681o is DISMISSED. Discover is advised that it may file an appropriate motion for attorney's fees according to the 15 U.S.C. § 1681o if the requirements for such an award are met. Signed by Judge Amos L. Mazzant, III on 3/17/2017. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
BRAD W. JOHNSON
EQUIFAX INFORMATION SERVICES,
LLC, DISCOVER FINANACIAL
Civil Action No. 4:16-CV-00551
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Brad Johnson’s Motion to Dismiss Defendant
Discover Financial Services’ Counterclaim (Dkt. #12). After reviewing the relevant pleadings
and motion, the Court finds the motion should be granted.
On July 25, 2016, Brad Johnson (“Johnson”) filed suit against Equifax Information
Services, LLC and Discover Financial Services (“Discover”) alleging a claim under the Fair
Credit Reporting Act (the “Act”) (Dkt. #1). On December 14, 2016, Discover filed its answer
and counterclaim stating a counterclaim for attorneys’ fees under 15 U.S.C. § 1681o (Dkt. #10 at
p. 11). On January 4, 2017, Johnson filed this motion (Dkt. #12). On January 26, 2017, Discover
filed its response (Dkt. #17).
Attorneys’ fees are typically claims for costs, not damages, “unless the substantive law
requires those fees to be proved at trial as an element of damages.” Fed. R. Civ. P. 54(d)(2)(A);
United Indus. v. Simon-Hartley, Ltd., 91 F.3d 762, 765–66 (5th Cir. 1996). When attorneys’ fees
are part of an affirmative claim for relief as part of a cause of action, then they must be pleaded
as special damages to be determined by the jury. See Williams v. Cordillera Commc’ns, Inc.,
No. 2:13–CV–124, 2014 WL 6674087, at *1–2 (S.D. Tex. Nov. 24, 2014). When the issue of
attorney’s fees is a “cost” that does not need to be determined by the jury, then it does not need
to be specially pleaded so long as the opponent is put on notice of the claim. Id. at *2.
The Fair Credit Reporting Act (“the Act”) creates a cause of action for consumers against
any person who negligently or intentional violates a requirement under the Act. 15 U.S.C.
§§ 1681n, 1681o. A consumer is an individual. Id. § 1681a(c). Discover is not an individual and
thus does not have a cause of action under the Act.
The Act further categorizes attorney’s fees as a cost determined by the Court. See id.
§ 1681n (“In the case of any successful action to enforce any liability under this section, the costs
of the action together with reasonable attorney’s fees as determined by the court.”) Id. §§ 1681n,
Discover’s right to attorneys’ fees is a defensive matter for frivolous claims. It is an
award for costs that is to be raised by motion. Discover does not have a cause of action for which
to lodge a counterclaim and thus did not need to plead attorneys’ fees as a counterclaim.
Discover may properly seek attorney’s fees by motion according to the sections entitling it to
attorney’s fees. Nevertheless, Discover’s counterclaim for attorney’s fees is improper.
It is therefore ORDERED that Plaintiff Brad Johnson’s Motion to Dismiss Defendant
Discover’s Counterclaim (Dkt. #12) is hereby GRANTED. Defendant Discover’s counterclaim
for attorney’s fees under 15 U.S.C. § 1681o is DISMISSED. Discover is advised that it may file
an appropriate motion for attorney’s fees according to the 15 U.S.C. § 1681o if the requirements
for such an award are met.
SIGNED this 17th day of March, 2017.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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