United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER AWARDING DAMAGES
STEPHEN J. MURPHY, III United States District Judge
Jeffrey Welther sued Defendants Schlottman & Wagner, P.C.
and Richard Wagner, Jr. under the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692 et seq.
("FDCPA"), and the Michigan Regulation of
Collection Practices Act, Mich. Comp. Laws § 445.251 et
seq.. The Court granted Plaintiff's motion for summary
judgment on the federal claim, ordered briefing on damages,
and referred the parties to mediation to resolve the damages
issue. The parties were unable to reach a settlement through
mediation, so the Court will now determine damages.
seeks $2, 000 in statutory damages, $36, 628.00 in attorney
fees, and $406.69 in costs, for a total of $39, 034.69.
Notice 7, ECF No. 70.
"has chosen to forego his claim for actual damages in
lieu of his claim for statutory damages." Notice 2, ECF
No. 70. He seeks $2, 000 in statutory damages - $1, 000 from
each Defendant. Pursuant to 15 U.S.C. § 1692k(a)(2)(A),
plaintiffs can receive from each Defendant statutory damages
of up to $1, 000, as determined by the Court. See
Ganske v. Checkrite, Ltd., No. 96-C-0541-S, 1997 WL
33810208, at *5 (W.D. Wis. Jan. 6, 1997) ("Because
§ 1692k(a) imposes liability for statutory damages upon
'any debt collector who fails to comply with [the act],
' statutory damages can be imposed against more than one
defendant debt collector in a single proceeding if it is
established by the plaintiff that each debt collector
independently violated the FDCPA.").
contend that "it is doubtful that a jury will award
Plaintiff any damages at all, " and thus conclude that
Plaintiff is not entitled to recover any statutory or actual
damages, and must instead prove his damages at trial. Resp.
2, ECF No. 71. But Plaintiff has made clear that he will
forego his claim for actual damages in lieu of his claim for
statutory damages. And the Court has discretion to assess
statutory damages. Jerman v. Carlisle, McNellie, Rini,
Kramer & Ulrich, No. 1:06-CV-1397, 2011 WL 1434679,
at *2 n.5 (N.D. Ohio Apr. 14, 2011) (citing 15 U.S.C.
§§ 1692k(a)(2)(A) and (b) ("[P]roviding
statutory damages shall be awarded as the court may
allow . . . [and] providing that in determining the amount of
liability, the court shall consider the
factors.") (emphasis in citation)); see also Savino
v. Computer Credit, Inc., 164 F.3d 81, 86 (2d Cir. 1998)
("All that is required for an award of statutory damages
is proof that the statute was violated, although a court must
then exercise its discretion to determine how much to award,
up to the $1, 000.00 ceiling.").
Court has determined that the statute was violated,
see Order, ECF No. 65, and will exercise its
discretion to determine the amount of statutory damages. The
Court must balance the purpose of the FDCPA - which is
"to eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain
from using abusive debt collection practices are not
competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection abuses,
" Fed. Home Loan Mortg. Corp. v.
Lamar, 503 F.3d 504, 508 (6th Cir. 2007) - against
several factors, including "the frequency and
persistence of noncompliance by the debt collector, the
nature of such noncompliance, and the extent to which such
noncompliance was intentional." 15 U.S.C. §
both Defendants are debt collectors, and are thus subject to
statutory damage penalties. But it is not clear - either from
Plaintiffs notice of damages or his summary judgment motion -
that Defendants' violations constituted frequent and
persistent willful or negligent noncompliance with the
statute such that Plaintiff is entitled to the full $1, 000
from each Defendant. Plaintiff did allege that at one point
Defendants issued a second letter demanding additional money
for attorney fees. And when Plaintiff called to ask why he
owed the debt, he could not get a straight answer. Am. Compl.
¶¶ 18-19, ECF No. 49. But there is little
evidence to support Plaintiffs claim that the violation was
"frequent and consistent, and was of a threatening
nature." See Reply 2, ECF No. 76. The letter
violated the statute, but its tone was neither threatening
nor abusive. And without more evidence that Defendants'
noncompliance with the statute was intentional, there is an
insufficient basis for an award of statutory damages greater
than $250 - $125 from each Defendant.
Attorney Fees and Costs
also seeks reasonable costs and attorney fees associated with
the case. The FDCPA authorizes an award of "the costs of
the action, together with a reasonable attorney's fee as
determined by the court." 15 U.S.C. § 1692k(a)(3).
Defendants argue that Plaintiff has not established that he
is the "prevailing party" such that he is entitled
to an award of attorney fees. Resp. 1, ECF No. 71. That is
incorrect. The Court determined that Defendants violated the
statute. See Order, ECF No. 65. The Court's
instant award of $250 in statutory damages provides Plaintiff
with relief on the merits of his claim, and is sufficient to
make him a prevailing party. Accordingly, an award of costs
and attorney fees is available.
to an attached invoice, Plaintiff's counsel's work
totaled $36, 628.00: $20, 650.00 for 59 hours of work by
attorney Gary Nitzkin at $350 an hour; $14, 970.00 for 49.9
hours of work by attorney Travis Shackelford at $300.00 an
hour; and $1, 008 for 7.2 hours of work by paralegals at
$140.00 an hour. Invoice, ECF No. 70-1; see also
Notice 7, ECF No. 70. Plaintiff's attorneys contend that
their fee is reasonable by providing the invoice and a rate
chart from the Michigan Bar Journal showing a $335 per hour
median billing rate for consumer law cases.
Sixth Circuit has identified several factors for courts to
consider in determining the lodestar amount, which is
calculated by multiplying the reasonable number of hours
billed by a reasonable rate. Isabel v. City of
Memphis, 404 F.3d 404, 415 (6th Cir. 2005). The Court
also considers the market rate charged by lawyers of
comparable experience. Adcock-Ladd v. Secretary of
Treasury, 227 F.3d 343, 350 (6th Cir. 2000).
notice, Plaintiff lists the factors the Court should
consider, but provides no analysis as to how those factors
apply the instant matter. See Notice 4-5, ECF No.
70. Nevertheless, the Court finds that time and labor
required of the Plaintiff's attorneys to skillfully
litigate the case was justified. The case has spanned several
years, and Plaintiff's attorneys have had to overcome
several hurdles to reach the conclusion. See Order
1-3, ECF No. 66. Above all things, "the most critical
factor in determining the reasonableness of a fee award is
the degree of success obtained." Isabel, 404
F.3d at 416 (quotations omitted). Although Plaintiff did not
receive the fullest possible amount of statutory damages
available to him, his attorneys ensured his success in all
other respects, including a successful motion for summary
judgment. In their brief, Defendants contend that
"attorney's fees were the real impetus behind the
filing and continuation of this action, " and point to
Plaintiff's rejection of Defendants' Offer of
Judgment at a very early stage in litigation as something the
Court should consider when determining an award of attorney
fees and costs. Resp. 3, ECF No. 71. But as Plaintiff points
out in his Reply, the offer was made while Plaintiff's
motion to add Defendant Richard Wagner, Jr. to the case was
still pending. Reply 2-3, ECF No. 76. Acceptance of the offer
would have ended the matter and foreclosed any ...