United States District Court, E.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR
ATTORNEY'S FEES AND COSTS (DOC. NO. 43)
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.
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.)
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.)
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.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.)
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.)
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
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
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)).
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
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).
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 ...