Bell v. National Credit Services Inc et al, No. 2:2019cv01727 - Document 105 (W.D. Wash. 2022)
Court Description: ORDER denying Defendant's 102 MOTION for Reconsideration of Award of Attorneys' Fees and Costs to Plaintiff in Defense of Motion for Sanctions. Defendant is hereby ORDERED to pay Plaintiff's attorneys fees in the amount of $9,487.50. Signed by Judge Richard A. Jones. (SR)
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Bell v. National Credit Services Inc et al Doc. 105 1 HONORABLE RICHARD A. JONES 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 11 12 DONTE BELL, Plaintiff, 13 14 Case No. 2:19-cv-01727 RAJ-BAT v. ORDER 15 16 NATIONAL CREDIT SERVICES INC., 17 Defendants. 18 19 20 21 22 23 I. This matter comes before the Court on Defendants’ Motion for Reconsideration of Award of Attorneys’ Fees and Costs to Plaintiff in Defense of Motion for Sanctions. Dkt. # 102. Plaintiff filed a response to the motion pursuant to the Court’s request. Dkt. # 104. For the reasons below, the Court DENIES the motion. 24 25 26 INTRODUCTION II. DISCUSSION On August 28, 2020, Defendant National Credit Services, Inc. (“Defendant” or “NCS”) filed a motion for attorneys’ fees, costs, and sanctions pursuant to Federal Rule 27 28 ORDER – 1 Dockets.Justia.com 1 of Civil Procedure 11. Dkt. # 82. On October 14, 2020, the Honorable Brian A. 2 Tsuchida entered a Report and Recommendation (“R&R), recommending that the Court 3 deny the motion and that Plaintiff Donte Bell (“Plaintiff” or “Mr. Bell”) be awarded his 4 attorney fees and costs incurred in defending the motion. Dkt. # 87 at 2. Defendant 5 timely filed objections to the R&R. Dkt. # 89. On November 20, 2020, Defendant filed a 6 motion for summary judgment. Dkt. # 94. Judge Tsuchida entered an R&R granting 7 Defendant’s motion for summary judgment. Dkt. # 98. The Court subsequently adopted 8 both R&Rs. Dkt. ## 99-100. Defendant then filed the pending motion for 9 reconsideration of the order. Dkt. # 102. Plaintiff, at the Court’s request, filed a 10 response. Dkt. # 104. Under the Local Civil Rules, “motions for reconsideration are disfavored.” W.D. 11 12 Wash. LCR 7(h). Such a motion will ordinarily be denied “in the absence of a showing 13 of manifest error in the prior ruling or a showing of new facts or legal authority which 14 could not have been brought to [the court’s] attention earlier with reasonable diligence.” 15 Id. 16 Rule 11 requires that an attorney who signs and files a pleading “certifies that to 17 the best of the person’s knowledge, information, and belief, formed after an inquiry 18 reasonable under the circumstances,” the matter is not, among other things, “being 19 presented for any improper purpose, such as to harass, cause unnecessary delay, or 20 needlessly increase the cost of litigation.” Fed. R. Civ. P. 11(b). An attorney must also 21 certify that “the factual contentions have evidentiary support or, if specifically so 22 identified, will likely have evidentiary support after a reasonable opportunity for further 23 investigation or discovery.” Id. As Judge Tsuchida explained in the R&R, the 24 imposition of Rule 11 sanctions is “not a judgment on the merits of an action. Rather, it 25 requires the determination of a collateral issue: whether the attorney has abused the 26 judicial process, and, if so, what sanction would be appropriate.” Dkt. # 87 at 2 (quoting 27 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990). Judge Tsuchida ultimately 28 ORDER – 2 1 found that this was not the “rare and exceptional case” for which Rule 11 sanctions were 2 reserved, wherein “the action is clearly frivolous, legally unreasonable or without legal 3 foundation, or brought for an improper purpose.” Id. at 12 (quoting Operating Eng’rs 4 Pension Trust v. A-C Co., 859 F.2d 1336, 1344 (9th Cir. 1988). 5 Defendant argues that reconsideration is warranted because (1) the Privacy Guard 6 reports were not consumer reports; and (2) Defendant was deprived of its right to be 7 heard regarding Plaintiff’s request for 28 U.S.C. § 1927 sanctions. Dkt. # 102 at 6. The 8 Court finds that neither argument compels reconsideration. 9 First, the Court concludes that the findings made through subsequent litigation do 10 not alter its initial conclusion that a Rule 11 motion was improper or that sanctions 11 against Defendant for filing such a motion were proper—based on the facts alleged at 12 that time. As Judge Tsuchida explained, “[w]hether Mr. Bell can ultimately prove that 13 NCS failed to comply with its obligations to investigate and correct any inaccurate or 14 complete information is a question more appropriately addressed in a motion for 15 summary judgment . . . .” Dkt. # 87 at 2. Defendant’s argument that Privacy Guard 16 reports were not, in fact, consumer reports does not warrant reconsideration of this 17 decision. Although the Court ultimately found that Privacy Guard was not a consumer 18 reporting agency and did not provide consumer reports under FCRA, the Rule 11 motion 19 was filed prior to the filing of any dispositive motions and the Court’s subsequent 20 findings. As Judge Tsuchida noted, at the time the motion was filed, there was no 21 evidence that Plaintiff’s counsel failed to conduct a reasonable inquiry and that 22 “[d]isagreeing on the facts and applicable law is not grounds for sanctions.” Id. at 10. 23 Moreover, Defendant’s argument only addressed one out of the three claims raised by 24 Plaintiff. 25 Second, the Court finds that Defendant and its counsel were not deprived of their 26 right to “understand the charges being made against them, fully respond, brief, and have a 27 hearing” regarding Plaintiff’s request for attorney’s fees and costs under § 1927. Dkt. 28 ORDER – 3 1 # 102 at 6. Defendant and its counsel did, in fact, have the chance to understand the 2 charges made against them as explained in Plaintiff’s response, Dkt. # 83 and in the 3 R&R, Dkt. # 87. Defendant and its counsel had the opportunity to fully respond in their 4 objections to the R&R, Dkt. # 89, where they raise some of the same arguments as here. 5 The Court need not conduct an oral hearing to provide Plaintiff a chance to be heard. See 6 Pac. Harbor Cap., Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000) 7 (holding that “an opportunity to be heard does not require an oral or evidentiary hearing 8 on the issue . . . [and that] [t]he opportunity to brief the issue fully satisfies due process 9 requirements”). The Court therefore concludes that Defendant and its counsel had not 10 been deprived of the opportunity to respond or be heard before the imposition of § 1927 11 sanctions. For these reasons, the motion for reconsideration is DENIED. 12 However, the Court agrees that Plaintiff’s requested amount for attorney’s fees is 13 “excessive.” Dkt. # 102 at 6. In its affidavit, Plaintiff requests a total of $31,500 for 42.2 14 hours worked. Dkt. # 101-1 at 2. The Court has reviewed and tallied all of the time 15 entries Plaintiff submitted and has calculated a total of 49.8 hours of work. In calculating 16 attorneys’ fees, the Court relies on its own tabulation of the number of hours set forth by 17 Plaintiff. Id. With 48.9 hours of work at a rate of $350 per hour and 0.9 hours at a rate of 18 $150 per hour, the total amount of attorney’s fees is $17,250. 19 The Court must next determine the reasonableness of fees. In granting attorney’s 20 fees, “[t]he district court has a great deal of discretion in determining the reasonableness 21 of the fee.” Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). The basic 22 standard used in determining the proper award of fees under § 1927 is the two-part 23 “lodestar” approach. Mirch v. Frank, 266 F. App’x 586, 588 (9th Cir. 2008). The Court 24 must first determine “the number of hours reasonably expended multiplied by a 25 reasonable hourly rate.” Gates, 987 F.2d at 1397. It may then adjust the amount based 26 on the following factors set out in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th 27 Cir. 1975): 28 ORDER – 4 1 (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the ‘undesirability’ of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Although the Court finds Plaintiff’s counsel’s hourly rate of $350 to be reasonable based on her experience and commensurate with local market rates, the Court finds the number of hours spent responding to Plaintiff’s 9-page motion—approximately 50 hours—to be excessive. The Court finds that the first two Kerr factors weigh in favor of a downward adjustment of 35 percent as the issues raised in Defendant’s motion for sanctions did not involve novel or difficult questions, nor complex legal issues requiring significant time and labor. Moreover, while Plaintiff succeeded in this motion, the Court granted summary judgment in favor of Defendant on all claims, based on a lack of evidence to support the claims, including the FCRA claim raised in Defendant’s motion for sanctions. This justifies a further downward adjustment of ten percent. Based on these adjustments, the Court ORDERS Defendant to pay attorney’s fees in the amount of $9,487.50. /// /// /// /// /// 27 28 ORDER – 5 III. 1 2 CONCLUSION For the reasons stated above, Defendant’s Motion for Reconsideration of Award of 3 Attorneys’ Fees and Costs to Plaintiff in Defense of Motion for Sanctions is DENIED. 4 Dkt. # 102. Defendant is hereby ORDERED to pay Plaintiff’s attorney’s fees in the 5 amount of $9,487.50. 6 7 DATED this 21st day of March, 2022. A 8 9 The Honorable Richard A. Jones United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER – 6
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