United States District Court, E.D. Michigan, Southern Division
ORDER SUSTAINING IN PART AND OVERRULING IN PART
OBJECTIONS TO REPORT AND RECOMMENDATION
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
Theodore McClain filed this lawsuit alleging violations of
the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692 et seq., and Michigan
Regulation of Collection Practices Act, Mich. Comp. Laws
§ 445.252(e) et seq., by Defendants Dalen
Patrick Hanna, an attorney, and his law firm, identified as
Hanna PLLC, and Hanna LLP. Specifically, McClain alleged that
Defendants sent him letters and telephoned him in order to
collect a time-barred debt. This Court ultimately entered
judgment on McClain's individual claims consistent with
Rule 68 of the Federal Rules of Civil Procedure and dismissed
the class action claims without prejudice, on mootness
grounds. See ECF No. 26 (Court's May 31, 2019
Order). McClain appealed that decision to the Sixth Circuit.
Because McClain is entitled to reasonable attorney's fees
and costs as the prevailing plaintiff in a FDCPA action,
Defendants preemptively filed a motion asking the Court to
limit McClain's reasonable attorney's fees to
$750.00. The amount of $432.40 in costs McClain seeks is not
in dispute. ECF No. 30. The case is now before the Court on
Magistrate Judge Stafford's Report and Recommendation,
ECF No. 38, recommending that McClain's request for
attorney's fees in the amount of $1, 016.00 for attorney
John Evanchek and $11, 720.00 for attorney Curtis Warner, in
addition to $423.40 in costs, be deemed reasonable.
Defendants also file objections to that Report and
Recommendation. ECF No. 40. For reasons discussed herein, the
Court will sustain Plaintiff's first objection to the
Report and Recommendation, which questions whether the hours
counsel spent preparing McClain's response to the motion
to determine attorney's fees was in fact reasonable. The
remaining objections will be overruled. Plaintiff's
request for an additional $2, 680 in fees incurred in
responding to Defendants' objections to the Report and
Recommendation will be denied.
March 15, 2019, Defendants sent McClain a tender of Rule 68
judgment “offer[ing] to allow Judgment to be entered
against them and in favor of Plaintiff . . . as to all counts
of Plaintiff's complaint, ” including actual
damages and statutory damages, as well as
“Plaintiff's costs accrued to-date” and
“Plaintiff's reasonable attorney fees as determined
by the Court.” ECF No. 14-2. Four days later, on March
19, 2019, McClain filed a motion seeking to certify a class
of plaintiffs who had received letters from Defendants from
March 8, 2018 through and including March 9,
2019. See ECF No. 13, PageID.48-49.
That same day, McClain also filed a notice communicating his
acceptance of Defendants' offer of individual judgment.
ECF No. 14. Consistent with this accepted offer of judgment,
this Court entered judgment on McClain's individual
claims and dismissed his putative class claim without
prejudice on mootness grounds. See ECF Nos. 26, 29.
The Amended Judgment expressly provides that individual
judgment is entered in McClain's favor against Defendants
for actual damages in the total amount of $600; statutory
damages in the amount of $1, 501.00; Plaintiff's costs
accrued to-date; and “Plaintiff's reasonable
attorney's fees, to be determined by the Court upon
review of briefing from counsel outlining the legal and
factual basis for the requested amount of fees or, in the
alternative a joint stipulation by the parties as to the
amount of attorney's fees.” ECF No. 29.
the parties engaged in some negotiation about what amount of
attorney's fees would be reasonable, they were unable to
reach an agreement. Consequently, Defendants filed a motion
asking that the Court award no more than $750.00 in
attorney's fees. ECF No. 30. McClain, however, seeks a
total attorney's fee award of $12, 736.00, in addition to
$423.40 in costs. These requested fees are comprised of 3.2
hours of work by John Evanchek at an hourly billable rate of
$322.00, and 29.3 hours of work by Curtis Warner at an hourly
billable rate of $400. ECF No. 31, PageID.372 (Pl.'s
Resp.). Although Plaintiff's counsel avers that these
fees are reasonable and were accrued only through litigating
McClain's individual claims and responding to the motion
to determine attorney's fees, ECF No. 31, PageID.388,
Defendants assert that the fees are “illegal and
unreasonable.” ECF No. 30, PageID.353.
motion to limit the award of reasonable attorney's fees,
ECF No. 30, was referred to Magistrate Judge Elizabeth A.
Stafford. She ultimately issued a Report and Recommendation,
ECF No. 38, concluding that both Evanchek and Warner's
requests for attorney's fees in the respective amounts of
$1, 016.00 and $11, 720.00 are reasonable, and that Warner
should also be awarded costs in the amount of $423.40.
Defendants filed timely objections to that Report and
Recommendation, ECF No. 40, which Plaintiff's counsel
responded to, ECF No. 41.
provides that either party may serve and file written
objections to a magistrate judge's report and
recommendation “[w]ithin fourteen days after being
served with a copy.” 28 U.S.C. § 636(b)(1). In
addition to being timely, in order to be considered by the
district court, objections to a report and recommendation
must be specific. Thrower v. Montgomery, 50
Fed.Appx. 262, 263 (6th Cir. 2002). “[A]n objection to
the report in general is not sufficient and results in waiver
of further review.” Id. (citing Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995)). In fact,
“[a] general objection is considered the equivalent of
failing to object entirely.” McCready v.
Kamminga, 113 Fed.Appx. 47, 49, 2004 WL 1832903 (6th
Cir. 2004). Additionally, objections to a report and
recommendation should not be used as a vehicle to rehash
arguments previously made by the objecting party. See
Ervin v. Comm'r of Social Sec., No. 11-13776, 2012
WL 4427987, at *1 (E.D. Mich. Sep. 25, 2012). A district
court “is not obligated to address objections which are
merely recitations of the identical arguments made before the
magistrate judge . . . [where] the objections fail to
identify the specific errors in the magistrate
judge's proposed recommendations.” Walton v.
Unum Life. Ins. Co. of Am., No. 16012518, 2017 WL
4161109, *1 (E.D. Mich. Sep. 20, 2017) (internal punctuation
omitted) (emphasis in original) (quoting Camardo v. Gen.
Motors Hourly-Rate Emps. Pension Plan, 806 F.Supp. 380,
382 (W.D.N.Y. 1992) (stating that recitations of previously
made, identical arguments constitute insufficient
objections)). After reviewing the report and recommendation,
any objections, and relevant briefing by the parties, the
district court must make a “de novo
determination of those portions of the report . . . to which
objection is made.” 28 U.S.C. § 636(b)(1)(c). The
court is not obligated to independently review portions of
the record which neither party has timely or specifically
objected to. See Thomas v. Arn, 474 U.S. 140, 149-52
FDCPA mandates the award of reasonable attorney's fees
and costs to a prevailing consumer. Dowling v. Litton Loan
Servicing LP, 320 Fed.Appx. 442, 446 (6th Cir. 2009)
(citing 15 U.S.C. § 1692k(a)(3)). The Sixth Circuit has
described a reasonable attorney's fee as “one that
is adequately compensatory to attract competent counsel yet
which avoids producing a windfall for lawyers.”
Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir.
2004) (quoting Reed v. Rhodes, 179 F.3d 453, 471
(6th Cir. 1999)). Determining a reasonable fee involves first
“calculating the product of ‘a reasonable hourly
rate' and ‘the numbers of hours reasonably expended
on the litigation.'” Dowling, 320
Fed.Appx. at 446 (quoting Hensley v. Eckerhart, 461
U.S. 424, 433 (1983)). This product is known as the
“lodestar.” Garner v. Cuyahoga Cty. Juvenile
Court, 554 F.3d 624, 642 (6th Cir. 2009). The Supreme
Court has recognized a “strong presumption” that
the lodestar amount is a “reasonable”
attorney's fee. Pennsylvania v. Del. Valley
Citizens' Council for Clean Air, 478 U.S. 546, 565
with governing law, this Court has reviewed the parties'
briefing on Defendants' motion to limit McClain's
award of reasonable attorney's fees and costs, ECF No.
30, as well as Magistrate Judge Stafford's Report and
Recommendation, ECF No. 38, Defendants' objections
thereto, ECF No. 40, and McClain's response, ECF No. 41.
It will now address each of McClain's objections in turn.
Objection 1: the $7, 440.00 in attorney's fees incurred
in responding to Defendants' motion to determine
attorney's fees is excessive
first take issue with Magistrate Judge Stafford's finding
that the 18.6 hours and $7, 440.00 in attorney's fees
Plaintiff's counsel claims to have incurred in responding
to Defendant's motion to determine attorney's fees is
unreasonable because it accounts for more than half the total
attorney's fee award sought by McClain. See ECF
No. 40, PageID.676-78. The Court agrees.
Curtis Warner contends he spent 18.6 hours formulating,
researching, drafting, editing, and formatting McClain's
response to Defendants' motion to determine
attorney's fees. See ECF No. 31-3, PageID.426-27
(Curtis Warner Decl. and Time Sheet). As pointed out by
Defendants, this is almost twice as much time as Warner says
he spent developing this case in the first instance, drafting
and revising the complaint, corresponding with opposing
counsel, and drafting a proposed amended judgment.
See ECF No. 31-3, PageID.426-27. The Court finds
that it was not reasonable for Warner to spend more than 13
attorney hours preparing his response to the motion for
attorney's fees. Accordingly, the Court will reduce the
total number of attorney hours Warner requests that he be
compensated for (29.3 hours) by the difference between the
18.6 hours Warner states he spent working on the
attorney's fee response and the 13 hours this Court
considers reasonable, which is 5.6 hours. The Court therefore
finds Warner should be compensated for 23.7 hours of attorney
time. According to the lodestar method, multiplying 23.7
hours by Warner's hourly rate of $400-which this Court
finds reasonable-Warner will be awarded $9, 480.00 in
Objection 2: Plaintiff's counsel has not properly audited
billings to separate work billed on ...