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McClain v. Hanna

United States District Court, E.D. Michigan, Southern Division

December 30, 2019




         Plaintiff 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.


         On 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.[1] 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.

         Although 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.

         Defendants' 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.


         The law 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 (1985).

         The FDCPA mandates the award of reasonable attorney's fees and costs to a prevailing consumer.[2] 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 (1986).

         Consistent 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.

         A. Objection 1: the $7, 440.00 in attorney's fees incurred in responding to Defendants' motion to determine attorney's fees is excessive

         Defendants 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.

         Attorney 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 attorney's fees.

         B. Objection 2: Plaintiff's counsel has not properly audited billings to separate work billed on ...

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