The opinion of the court was delivered by: RUDI BREWSTER, Senior District Judge
ORDER: DENYING DEFENDANT'S
MOTION FOR ATTORNEY FEES
On January 16, 2004, Defendant's Motion for Attorney's Fees came on for
regular hearing. Joshua Swigart, Esq. appeared on behalf of Plaintiff and
John O. Clune, Esq. appeared on behalf of Defendant. Thomas E. Jensen,
Esq. was also present.
Having reviewed the record, heard oral argument and for the reasons
here below, the Court hereby DENIES Plaintiffs Motion for
On August 20, 2003, Heather Lemieux filed a complaint against Thomas E.
Jensen ("Defendant") alleging violations of the Fair Debt Collections
Practices Act, 15 U.S.C. § 1692 et seq., ("FDCPA") and the Rosenthal
Fair Debt Collections Practices Act, C AL. CIV. §§ 1788-1788.32
Defendant is an attorney who provides legal services for Atlantic
Credit, Inc., a debt settlement company.
On August 21, 2003, Defendant wrote a letter to Plaintiff advising
Plaintiff of his intention to file a motion to dismiss pursuant to FRCP
12(b)(6) and a motion for sanctions
pursuant to FRCP 11(b). Defendant asserted in the letter a variety
of reasons why neither the FDCPA nor the RFDCPA was applicable, including
the fact that he was not a "debt collector" as defined by the FDCPA and
On August 22, 2003, Plaintiff filed a first amended complaint, deleting
the cause of action under the RFDCPA.
On August 28, 2003, Defendant apparently telephoned Plaintiff and asked
if he intended to dismiss the action. Plaintiff alleges that during that
telephone conversation, Defendant attempted to pressure him into
dismissing the case stating an intention to file a motion for
Rule 11 sanctions and reporting Plaintiff's behavior to the State Bar of
On September 2, 2003, Defendant faxed a letter to Plaintiff reiterating
his intention to file a motion for Rule 11 sanctions and stating that he
had not received a copy of the amended complaint.
On September 9, 2003, John O. Clune, Esq., informed Plaintiff that he
would be representing Defendant in all further matters. Also on September
9, 2003, Defendant filed a motion to dismiss pursuant to FRCP 12(b)(6).
Defendant's motion included several sworn declarations, including one by
Defendant. The hearing was originally noticed for October 14, 2003.
On September 16, 2003, Plaintiff dismissed the case with prejudice.
On September 19, 2003, Defendant again wrote Plaintiff. In that letter,
Defendant made a series of allegations that Plaintiff had violated
numerous ethical rules.
It is well established that under the "American rule" courts ordinarily
will not award the prevailing party attorneys' fees absent statutory
authority to do so. See, e.g., Hensley v. Eckerhart,
461 U.S. 424, 429 (1983). When a statute provides for such fees, it is
termed a "fee-shifting" statute. Under a fee-shifting statute, the court
"must calculate awards for attorneys' fees using the ...