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Lyon v. Bergstrom Law, Ltd.

United States District Court, E.D. California

September 7, 2017

NICOLE LYON, Plaintiff,
v.
BERGSTROM LAW, LTD., Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS (DOC. NO. 43)

         This matter came before the court on September 6, 2017 for hearing on plaintiff's motion for attorney's fees and costs. (Doc. No. 43.) Attorney Crosby S. Connolly appeared on behalf of plaintiff Nicole Lyon. No appearance was made by or on behalf of defendant Bergstrom Law, Ltd., against which default judgment has previously been entered. (Doc. No. 41.) After oral argument, the motion was taken under submission. For the reasons stated below, plaintiff's motion for attorney's fees and costs is granted.

         BACKGROUND

         Plaintiff filed suit against defendant on March 24, 2016, alleging violations of the federal Fair Debt Collection Practices Act (the “FDCPA”) and California's Rosenthal Fair Debt Collection Practices Act (the “Rosenthal Act”). (Doc. No. 1.)

         On May 31, 2016, defendant filed a motion to dismiss plaintiff's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 5.) Upon submission of briefs by both parties, and after oral argument, the court denied defendant's motion to dismiss on August 5, 2016. (Doc. No. 18.) Thereafter, and pursuant to a prior agreement between the parties, defendant's responses to plaintiff's discovery requests became due on September 4, 2016. (Doc. No. 25-2 at ¶¶ 8-9; Doc. No. 25-5.) On August 5, 2016, plaintiff's counsel emailed defendant's counsel, Katherine G. Heidbrink, confirming the date on which defendant intended to provide responses to plaintiff's discovery requests. (Doc. No. 25-2 at ¶ 13; Doc. No. 25-6.) Later that day, plaintiff's counsel emailed Jeremy Bergstrom, the managing attorney at defendant Bergstrom Law, Ltd. (Doc. No. 25-2 at ¶ 15; Doc. No. 25-7.) Plaintiff's counsel stated in his email to Mr. Bergstrom that he had recently become aware of attorney Heidbrink's departure from Bergstrom Law. (Id.) Plaintiff's counsel reiterated his request that Mr. Bergstrom provide the date on which defendant intended to provide responses to plaintiff's discovery requests. (Id.) Plaintiff's counsel received no response to this email. (Doc. No. 25-22 at ¶ 16.)

         Over the following weeks, plaintiff's counsel made further efforts to contact Mr. Bergstrom and other employees of Bergstrom Law, including by phone, email, fax, and mail.[1]On October 14, 2016, after receiving no response to its requests, plaintiff filed a motion to compel defendant's discovery responses, which included a request for attorney's fees accrued in connection with the repeated attempts to contact defendant's counsel. (Doc. No. 27.) Defendant did not oppose the motion to compel, which was granted by the assigned magistrate judge on November 2, 2016 with an award of attorney's fees to plaintiff's counsel . (Id.) Defendant has failed to comply with this order, both by refusing to respond to plaintiff's discovery requests and by failing to timely pay attorney's fees. (Doc. No. 28; Doc. No. 29.)

         On December 28, 2016, plaintiff filed a motion to strike defendant's answer to the complaint. (Doc. No. 30.) Defendant did not oppose the motion. On January 17, 2017, the assigned magistrate judge issued findings and recommendations recommending that plaintiff's motion to strike be granted, and that default be entered against defendant. (Doc. No. 31.) On March 30, 2017, the undersigned adopted those findings and recommendations in full, struck the defendant's answer, and directed the Clerk of the Court to enter default against defendant. (Doc. No. 35.)

         On April 25, 2017, plaintiff moved for default judgment. (Doc. No. 38.) On May 31, 2017, the magistrate judge issued findings and recommendations recommending plaintiff's motion for default judgment be granted. (Doc. No. 40.) On July 11, 2017, the undersigned adopted those findings and recommendations in full, granted plaintiff's motion for default judgment, and awarded statutory damages to plaintiff under both the FDCPA and the Rosenthal Act. (Doc. No. 41.) The court also directed plaintiffs to file a motion for attorney's fees and costs within fourteen days. (Id.) On July 24, 2017, plaintiffs filed a motion for attorney's fees and costs, which is presently before the court.

         LEGAL STANDARD

         The FDCPA provides that any debt collector who fails to comply with its provisions is liable “in the case of any successful action . . . [for] the costs of the action, together with a reasonable attorney's fee as determined by the court.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (quoting 15 U.S.C. § 1692k(a)(3)). The language of the FDCPA makes the award of attorney's fees mandatory rather than discretionary. Id.

         In calculating the fee award, courts are instructed to use the “lodestar method.” Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n. 4 (9th Cir. 2001). The lodestar method requires multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate. Staton v. Boeing Co., 327 F.3d 938, 965 (9th Cir. 2003) (citation omitted). There is a “strong presumption” that the lodestar figure represents a reasonable award, and the figure should only be departed from “if certain factors relating to the nature and difficulty of the case overcome this strong presumption and indicate that such an adjustment is necessary.” Hiken v. Dep't of Def., 836 F.3d 1037, 1044 (9th Cir. 2016) (quoting Long v. IRS, 932 F.2d 1309, 1314 (9th Cir. 1991)).

         The district court must determine a reasonable hourly rate, taking into account the experience, reputation, and ability of the attorney; the outcome of the results of the proceedings; the customary fees in the community; and the novelty or the difficulty of the question presented. Hiken, 836 F.3d at 1044; Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). Generally, the forum district represents the relevant legal community. Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992); see also Shirrod v. Dir., Office of Workers' Comp. Programs, 809 F.3d 1082, 1087 (9th Cir. 2015); Camacho, 523 F.3d at 979 (determining that “generally, the relevant community [for the prevailing market rate] is the forum in which the district court sits”).

         After determining that the hourly rate is reasonable, the next step in calculating attorney's fees under the lodestar method is to examine the number of hours reasonably expended in prosecuting the case. Where attorney's fees are awarded, the prevailing party's counsel is normally entitled to compensation for “all hours reasonably expended on the litigation.” Hensley v. Eckerhart, 461 U.S. 424, 435 (1983); see also Ibrahim v. U.S. Dep't of Homeland Sec., 835 F.3d 1048, 1060 (9th Cir. 2016). However, compensation may be reduced where there is inadequate documentation of hours expended, or where the time claimed is “excessive, redundant, or otherwise unnecessary.” Jankey v. Poop Deck, 537 F.3d 1122, 1132 (9th Cir. 2008) (quoting Hensley, 461 U.S. at 434); Cunningham v. Cty. of Los Angeles, 879 F.2d 481, 484 (9th Cir. 1988).

         In addition to attorney's fees, the FDCPA also contemplates the awarding of “costs of the action” to the prevailing party. Camacho, 523 F.3d at 978. Accord Marx v. General Revenue Corp., 668 F.3d ...


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