United States District Court, D. Nevada
JUDY A. WILLIAMS, Plaintiff,
PINNACLE SERVICES, INC. dba SUMMIT COLLECTIONS SERVICES, Defendant.
the court is the plaintiff's motion for attorney's
fees (ECF No. 9). Defendant has opposed (ECF No. 15), and
plaintiff has replied (ECF No. 17).
filed her complaint in this action on October 17, 2016,
alleging three causes of action under the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692 et seq. Plaintiff's complaint sought
actual and statutory damages as to each claim for relief.
October 26, 2016, defendant served plaintiff with an offer of
judgment pursuant to Federal Rule of Civil Procedure 68.
Defendant offered to allow judgment to be entered against it
in the amount of $2, 500.00. On November 7, 2016, plaintiff
accepted the offer of judgment, and on November 18, 2016, she
filed notice of acceptance of the offer of judgment with the
court. The clerk of court thereafter entered
judgment against defendant pursuant to the terms of the
December 1, 2016, the plaintiff filed a motion for
attorney's fees and costs, which seeks an award of fees
in the amount of $5, 337.00 and an award of costs in the
amount of $437.00.
filed her motion pursuant to Federal Rule of Civil Procedure
54. Federal Rule of Civil Procedure 54(d)(1) allows an award
of costs to the prevailing party. Federal Rule of Civil
Procedure 54(d)(2) sets forth the procedure for obtaining an
award of attorney's fees but does not provide the
substantive basis for such an award. Fees are recoverable
only if there is a rule, statute, or contract that authorizes
such an award. See MRO Commc'ns, Inc. v. Am. Tel
& Tel. Co., 197 F.3d 1276, 1281 (9th Cir. 1999).
plaintiff seeks an award of costs and fees pursuant to 15
U.S.C. § 1692k(a)(3). Section 1692k(a)(3) provides that
“in the case of any successful action to enforce . . .
liability” under the FDCPA, the defendant is liable to
the plaintiff for “the costs of the action, together
with a reasonable attorney's fee as determined by the
court.” Attorney's fees are thus mandatory in a
successful FDCPA case. Camacho v. Bridgeport Fin.,
Inc., 523 F.3d 973, 978 (9th Cir. 2008).
argues that plaintiff is not entitled to an award of
attorney's fees and costs because defendant intended for
its offer to include both. Although the offer does not
mention fees and costs, defendant argues that it was
inclusive of both because it offered plaintiff $2, 500.00
when the most she could have recovered under the statute was
is clearly established that where a Rule 68 offer is silent
on costs, the court may award an additional amount to cover
the prevailing party's costs. Marek v. Chesny,
473 U.S. 1, 6 (1985). Accordingly, the argument that the
offer implicitly included costs is unpersuasive.
respect to fees, defendant relies on a Sixth Circuit
decision, McCain v. Detroit II Auto Fin. Ctr., 378
F.3d 561 (6th Cir. 2004), which found that an offer that did
not mention attorney's fees was nevertheless inclusive of
them. However, in McCain, the complaint sought
attorney's fees with respect to every claim, and the
offer was made to settle “all claims and causes of
action.” The Sixth Circuit thus concluded that the
offer unambiguously included attorney's fees, which were
part of the claims and causes of action pled in the
complaint. Here, the plaintiff did not seek attorney's
fees in the complaint, nor did the offer state that it
covered all claims. McCain is thus distinguishable
from this case. However, in Nusom v. Comh Woodburn,
Inc., 122 F.3d 830, 833 (9th Cir. 1997), the Ninth
Circuit held that a Rule 68 offer that was silent as to
attorney's fees did not preclude the plaintiff from
seeking attorney's fees pursuant to the relevant statute.
The court made clear that “any waiver or
limitation” of attorney's fees in a Rule 68 offer
“must be clear and unambiguous” and that any
ambiguities in the offer “are construed against the
offeror.” Id.; see also Webb v.
James, 147 F.3d 617, 623 (7th Cir. 1998). It concluded
that the offer, which was silent as to attorney's fees,
did not clearly waive or limit attorney's fees.
Nusom, 122 F.3d at 833-34.
the offer was silent as to attorney's fees and thus did
not unambiguously waive or limit fees. Additionally, while
plaintiff did assert claims for statutory damages, which are
capped at $1, 000.00, she also asserted claims for actual
damages. The defendant has not established that plaintiff
could not have recovered actual damages. The court concludes
the offer did not include attorney's fees and plaintiff
is therefore entitled to an award of fees pursuant to 15
U.S.C. § 1692k(a)(3).
making an award of attorney's fees, the court begins by
calculating the “lodestar.” Caudle v. Bristow
Optical Co., Inc., 224 F.3d 1014, 1028 (9th Cir. 2000).
The lodestar is reached by multiplying the number of hours
the prevailing party reasonably expended on the litigation by
a reasonable hourly rate. Id. In determining the
hours to be included in the lodestar, the court should
exclude hours that are “excessive, redundant, or
otherwise unnecessary.” McCown v. City of
Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009).
cases, the lodestar is presumptively a reasonable fee award.
Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149
n.4 (9th Cir. 2001). However, if the circumstances warrant,
the court may “adjust the lodestar to account for other
factors that are not subsumed within it.” Id.
Those factors are:
(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.
Cairns v. Franklin Mint Co., 292 F.3d 1139, 1158
(9th Cir. 2002) (citing Kerr v. Screen Extras Guild,
Inc., 526 F.2d 67, 70 (9th Cir. 1975)). The court need
not consider all factors - “only those called into
question by the case at hand and necessary to ...