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Abad v. Williams

July 18, 2008

MYRNA ABAD, PLAINTIFF,
v.
WILLIAMS, COHEN & GRAY, INC., DEFENDANT.



The opinion of the court was delivered by: Saundra Brown Armstrong United States District Judge

ORDER

[Docket No. 65]

INTRODUCTION

Before the Court is plaintiff Myrna Abad's Motion for Reconsideration (the "Motion") [Docket No. 65], defendant Williams, Cohen & Gray, Inc.'s Opposition to the Motion (the "Opposition") [Docket No. 67], Abad's Reply to the Opposition (the "Reply") [Docket No. 68], and Abad's Memorandum in Support of the Motion (the "Memorandum") [Docket No. 70]. On April 23, 2007, Magistrate Judge Joseph C. Spero issued a Report and Recommendation Regarding Plaintiff's Motion for an Award of Costs and Attorney Fees (the "Report") [Docket No. 56]. On June 26, 2007, the Court adopted and modified in part the Report. See Order at 1 (the "Order") [Docket No. 60]. In her Motion, Abad requests the Court reconsider its Order, under Federal Rule of Civil Procedure 59(e), on the ground Camacho v. Bridgeport Financial, Inc., 523 F.3d 973 (9th Cir. 2008), a recent Ninth Circuit decision, changed the law applicable to motions for attorneys' fees. As discussed below, the Court DENIES the Motion, as Camacho did not change the law applicable to motions for attorneys' fees, and because the Court determined Abad's attorneys' fees in accordance with the procedures discussed in Camacho.

BACKGROUND

Abad filed a Complaint [Docket No. 1] on April 12, 2006, and a First Amended Complaint [Docket No. 4] on May 24, 2006, against Williams, Cohen & Gray, Inc. ("WCG"), alleging it had violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and the California Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 et seq. See Docket Nos. 1, 4. Abad's attorneys were O. Randolph Bragg, Irving L. Berg, and Craig Shapiro. Report at 3:19-21, 4:1-2. WCG made a settlement offer pursuant to Federal Rule of Civil Procedure 68, which Abad accepted, and the Court entered judgment and dismissed the case on October 13, 2006. See Docket No. 26.

Abad then filed a Motion for an Award of Costs and Attorney Fees on October 26, 2006, see Docket No. 27, which the Court referred to Magistrate Judge Spero on January 31, 2007, see Docket No. 46. On April 23, 2007, Magistrate Judge Spero issued his Report. See Report at 1. In it, he reduced the number of hours Abad's counsel spent on her matter because he found it was a relatively straightforward one. Id. at 10:24-27. He also reduced Bragg's hourly rate based on a rate Bragg had recently been awarded in another FDCPA case. Id. at 9:4-7. Magistrate Judge Spero also reduced Berg's rate based on declarations by two class action attorneys discussing Berg's reasonable hourly rate, and based on a recently decided FDCPA case involving another attorney. Id. at 10:17-22. As a result, he recommended the Court award attorneys' fees and costs in the amount of $8,458, at the hourly rates of $435 for Bragg, $350 for Berg, and $200 for Shapiro. Id. at 16.

On May 7, 2007, WCG filed objections. See Docket No. 57. Abad did not file a response.

On June 26, 2007, the Court adopted in part and modified in part the Report. Order at 1:18-19.

Specifically, the Court decreased Bragg's and Berg's hourly rate to $250 because of recently awarded rates in other Northern District FDCPA cases, thus reducing the overall award to $5,930.50. See Id. at 7:2-5, 9-15.

On July 2, 2007, under Civil Local Rule 7-9(a), Abad filed a motion for the Court to grant her leave to file the Motion, see Docket No. 61, which the Court granted, see Docket No. 64. On March 20, 2008, Abad filed her Motion. See Mot. at 1. In it, she requested the Court stay reconsideration until the Ninth Circuit decided Camacho v. Bridgeport Financial, Inc., No. C 04 00478 CRB, slip op., 2007 WL 1302731 (N.D. Cal. May 2, 2007), a FDCPA case litigated by Bragg, Berg, and another attorney. See Mot. at 1:26-2:3. On March 31, 2008, WCG filed its Opposition, arguing Camacho's resolution would have no bearing on Abad's fees, and that she had failed to show the new facts, new law, or manifest error necessary to support reconsideration. See Opp'n at 5:7-12. On April 4, 2008, Abad filed her Reply, pointing out various courts in the Northern District had awarded Bragg hourly rates ranging from as low as $200 to as high as $465, and that Camacho would resolve this discrepancy. See Reply at 2:15-3:8. On April 22, 2008, the Ninth Circuit decided Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 973 (9th Cir. 2008). On May 6, 2008, Abad filed her Memorandum analyzing Camacho's impact on this matter. See Mem. at 1.

LEGAL STANDARD

Generally, a post-order motion seeking a substantive change in an order, as opposed to a clerical one, will be considered a Rule 59(e) motion, if filed within ten days of entry. Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). If it is filed more than ten days after entry, however, then it will be considered a Rule 60(b) motion. Id. at 899. Regardless of whether a motion is titled with Rule 59(e) or Rule 60(b), a court will construe it, "however styled, to be the type proper for the relief requested." Miller v. Transam. Press, Inc., 709 F.2d 524, 527 (9th Cir. 1983). Under Rule 59(e), "[a] motion to alter or amend a judgment must be filed no later than 10 days after entry of the judgment." Fed. R. Civ. P. 59(e). Although Rule 59(e) does not specify any grounds for relief, it is generally appropriate to amend a judgment where a court "(1) is presented with newly discovered evidence, (2) committed clear error or ...


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