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Williams v. Pinnacle Services, Inc.

United States District Court, D. Nevada

February 3, 2017

JUDY A. WILLIAMS, Plaintiff,


         Before 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).

         Plaintiff 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.

         On 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.[1] The clerk of court thereafter entered judgment against defendant pursuant to the terms of the offer.

         On 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.

         Plaintiff 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).

         Here, 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).

         Defendant 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 $1, 000.00.

         The law 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.

         With 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.

         Here, 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).

         In 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).

         In most 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 ...

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