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Preston v. Appollo

United States District Court, District of Nevada

April 28, 2015

Donald Preston, Plaintiff,
Appollo, Defendants.


Jennifer A. Dorsey United States District Judge

Plaintiff Donald Preston moves for default judgment against defendant "Appollo"[1] seeking statutory damages of $1, 000 under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692k(a)(2)(A), $1, 775 in attorney's fees as the prevailing party in this lawsuit and $500 in costs.[2]On April 8, 2015, Magistrate Judge Leen entered a report and recommendation finding that the full $3, 225 amount is reasonable and should be awarded.[3] Objections were due April 22, 2015.[4] Neither party has filed an objection. "[N]o review is required of a magistrate judge's report and recommendation unless objections are filed."[5]

Even were I to independently review and evaluate the merits of Magistrate Judge Leen's conclusions, I would reach the same result. Federal Rule of Civil Procedure 55 provides a mechanism for obtaining a default judgment against a party who has failed to plead or otherwise respond to claims brought against it. After obtaining a clerk's entry of default, the movant must request a default judgment from the court under Rule 55(b)(2).[6] The court has discretion to enter a judgment by default, which typically turns on the consideration of the seven factors under Eitel v. McCool: (1) potential prejudice to the plaintiff; (2) the merits of the plaintiffs substantive claim; (3) the sufficiency of the complaint; (4) the amount of money at stake in the action; (5) the potential disputes as to material facts; (6) whether the default was due to excusable neglect; and (7) the strong federal policy favoring adjudications on the merits.[7] Upon review of the application for default judgment, I find Preston has satisfied both the procedural and substantive requirements for obtaining a default judgment under Eitel.

Preston is also entitled to a judgment in the amount of his full requested costs. First, he prevailed on his FDCPA suit for violation of 15 U.S.C. §§ 1692-1692p, entitling him to the $1, 000 in "additional damages" he requests.[8] Preston's $500 in costs for filing and service of the complaint are also awardable as "fees of the clerk and marshal."[9]

As to Preston's requested attorney's fees of $1, 775, an award of attorney's fees in FDCPA actions is mandatory if the plaintiff prevails.[10] The fee calculation is governed by the lodestar method, which "is calculated by multiplying the number of hours the prevailing party reasonably extended on the litigation by a reasonable hourly rate.[11] This figure may then be adjusted upward or downward based on the 12-factor test in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), which is incorporated into this district's local rule 54-16:[12]

(1) the time and labor required; (2) the novelty and 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.[13]

"This circuit requires that courts reach attorneys' fee decisions by considering some or all of the Kerr factors, and "[a] mere statement that the court has considered the Kerr guidelines does not make a decision within the court's discretion."[14]

To support his request for attorney fees, Preston offers the declaration of his attorney Danny Horen.[15] Horen declares he is a managing associate at the Kazerouni Law Group, PAC, was admitted to the Nevada bar in 2013, and has handled federal litigation in more than 30 cases-which have resulted in more than 20 published decisions.[16] He claims his requested $250 hourly rate is "based on our experience, our proficiency, and our winning track record."[17] Horen also attaches an itemized list of billing entries totaling 11.3 hours, but he only seeks recovery for 7.1 hours that he billed.[18]

Although Horen's declaration never explicitly explains why a $250 hourly award is compensable for his work, the relevant test for determining the reasonableness of an hourly wage is whether the rate is "in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation."[19] Other courts in this district have found a rate of $250 appropriate for Las Vegas attorneys with one to three years of experience.[20] I do not disagree.

Moreover, I find Horen's 7.1 hours are a reasonable reflection of the time spent on this lawsuit. Additionally, as Horen notes, debt-collection cases are undesirable "due to the specialized and complex nature of the statute and case law and due the relative financial resources of the respective parties."[21] Horen's declaration thus satisfies the second, third, and tenth Kerr factors at the very least. Preston is entitled to recover the $1, 775 in attorney's fees he requests.


Accordingly, and with good cause appearing, It is hereby ORDERED that Magistrate Judge Leen's report and recommendation [Doc. 10] is ADOPTED.

It is FURTHER ORDERED that Preston's motion for default judgment [Doc. 9] is GRANTED.

It is FURTHER ORDERED, ADJUDGED, and DECREED that Final Judgment is entered in favor of Preston and ...

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