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LEMIEUX v. JENSEN

January 29, 2004.

HEATHER LEMIEUX,
v.
Plaintiff, THOMAS E. JENSEN, Defendant



The opinion of the court was delivered by: RUDI BREWSTER, Senior District Judge

ORDER: DENYING DEFENDANT'S MOTION FOR ATTORNEY FEES
I. Introduction
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 Attorney's Fees.

 II. Background

  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 ("RFDCPA").

  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 Page 2 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 RFDCPA.

  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 California.

  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.

 III. STANDARDS OF LAW

  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 ...


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