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Kersten v. Quick Collect, Inc.

United States District Court, D. Oregon, Medford Division

April 27, 2015

VALARIE KERSTEN, Plaintiff,
v.
QUICK COLLECT, INC., Defendant.

REPORT & RECOMMENDATION

MARK D. CLARKE, Magistrate Judge.

Plaintiff Valarie Kersten ("Plaintiff') moves this Court for an av.rard of $23, 70:2.45 under the Fair Debt Collection Practices Act (the "Act"), 15 U.S.C. § 1692 et seq. Specifically, Plaintiff seeks $1, 000.00 in statutory damages, $21, 952.50 in attorney's fees, and $749.95 in costs. Defendant Quick Collect, Inc. ("Defendant") has not filed a response or opposition to Plaintiff's motion. Exercising its duty to independently review Plaintiffs fee request, the Court recommends that Plaintiffs request be GRANTED.

BACKGROUND

On April 23, 2014, Plaintiff filed a Complaint(#1) alleging Defendant violated the Act when it failed to identify itself in a voice mail message for Plaintiff. On January 7, 2015, this Court granted (#39) Plaintiffs summary judgment motion with respect to liability and allowed the parties additional time to brief attorney's fees, costs, and damages. On January 30, 2015, Plaintiff filed her present motion (#41). Defendant did not file a response. Despite this, the Court must independently determine the award to which Plaintiff is entitled. Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir. 1993) (district courts are required to "independently review plaintiffs' fee request[s] even absent defense objections").

LEGAL STANDARD

A debt collector who fails to comply with the Act's provisions is liable for(1) any actual damage sustained as a result of the failure; (2) "additional damages as the court may allow, " not to exceed $1, 000; and (3) the "in the case of any successful action... costs of the action, together with a reasonable attorney's fee as determined by the court." 15 U.S.C. § 1692k(a). The Act "makes an award of fees mandatory" on proof of violation in order to incentivize private attorneys to take on debtor's enforcement actions. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008).

DISCUSSION

I. Statutory Damages

Plaintiff seeks the maximum statutory damages award available under the Act: $1, 000. In assessing this request, the court must consider, among other relevant factors, "the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional...." 15 U.S.C. § 1692k(b). Proof of actual damages is not required to support an award of statutory damages. Baker v. G. C. Servs. Corp., 677 F.2d 775, 780 (9th Cir. 1982).

In this case, the first two factors do not support Plaintiffs request. There is no evidence that Defendant's violation was anything other than an isolated event. Nothing suggests Defendant has persistently failed to comply with the Act. Davis v. Hollins Law, 25 F.Supp.3d 1292, 1296 (E.D. Cal. June 12, 2014) (finding "a de minimis avvard appear[ed] appropriate" because the defendant's violation was nothing more than "a one-time occurrence"). Nor was Defendant's violation - failing to properly identify itself in a voice mail message - particularly egregious or discernibly harmful to Plaintiff District courts within the Ninth Circuit have found similar violations did not warrant substantial awards. id. (finding a collector's omission of required disclosures in a voicemail "does not support a significant award, as the court can discern no harm to plaintiff from the act."); Forkum v. Co-Operative Adjustment Bureau. Inc., No. C 13-0811 SBA, 2014 WL 3101784, at *1 (N.D. Cal. July 13, 2014) (awarding $250 in statutory damages where the defendant failed to identify itself in a voice message).

However, the third factor weighs strongly in Plaintiffs favor. Defendant has not submitted any evidence that its violation was unintentional. Courts confronted with similarly lacking opposition have granted maximum statutory awards. Tolentino v. Friedman, 46 F.3d 645, 651 (7th Cir. 1995) (affirming maximum statutory damages under the FDCPA where defendant did not contest the maximum amount of damages); Gordon v. Credit Bureau of Lancaster & Paln1dale, No. CV 11-2272 PSG PJWX, 2012 WL 1813668, at *3 (C.D. Cal. Apr. 20, 2012) (granting $1, 000 in statutory damages under the Act because the Defendant failed to file opposition or provide evidence that its violations were unintentional). Moreover, at the summary judgment stage, Defendant mounted evidence that its error was, in fact, intentional. It was Defendant's policy to leave minimal information in voice messages for debtors. In light of Defendant's current lack of opposition and its prior evidentiary submissions regarding its intent, the Court finds an award of $1, 000 in statutory damages is warranted. See Edwards v. Niagara Credit Solutions, Inc., 586 F.Supp.2d 1346, 1363 (N.D.Ga. 2008), aff'd on other grounds, 584 F.3d 1350 (11th Cir. 2009) ("The Court finds that, based on Defendant's admission that it is company policy for callers leaving answering machine messages not to identify themselves as calling on behalf of [the Defendant] or calling for the purpose of attempting to collect a debt, that Plaintiff should be awarded the maximum amount of statutory damages.").

II. Attorney's Fees

Plaintiff requests an award of attorney's fees in the amount of $21, 952.50. The Ninth Circuit instructs district courts to calculate attorney's fee awards using the lodestar method: multiplying the number of hours reasonably expended by a reasonable hourly rate. Camacho, 523 F.3d at 978. In most cases, the product of the lodestar calculation is presumptively reasonable. Id. However, it may be adjusted to account for a variety of reasonableness factors, including the quality of the attorney's performance, the results obtained, the novelty and complexity of a case, and the special skill and experience of counsel. Gonzalez v. City of Maywood, 729 F.3d 1196, 1209 n.11 (9th Cir. 2013).

The party seeking an award of attorney's fees "has the burden of submitting billing records to establish that the number of hours it has requested [is] reasonable." Id. at 1202. These records should exclude hours "that are excessive, redundant, or otherwise unnecessary." Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Here, Plaintiff submits a detailed time report reflecting 105.10 total hours of work performed by four attorneys. Ex. A. Plaintiff also offers declarations from multiple attorneys experienced in the field of consumer law who opine that Plaintiffs' attorneys spent an appropriate amount of time on this case. Powelson Decl. ¶ 9; Bontrager Decl. ¶ 19; Martin Decl. ¶ 13. Defendant does not challenge the hours expended by ...


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