United States District Court, D. Minnesota
Julie M. Dunnigan, Plaintiff,
Federal Home Loan Mortgage Corporation d/b/a Freddie Mac, Defendant.
H. Goolsby, Goolsby Law Office, LLC, for Plaintiff.
M. DeMinck and Ellen B. Silverman, Hinshaw & Culbertson,
LLP, for Defendant.
RICHARD NELSON, United States District Judge.
matter is before the Court on Plaintiff Dunnigan's
Objections (“Objs.”) [Doc. No. 91] to Magistrate
Judge Mayeron's Report and Recommendation
(“R&R”) [Doc. No. 90] and Plaintiff's
Motion for Attorney's Fees [Doc. No. 71]. For the reasons
set forth below, Dunnigan's Objections are sustained in
part and overruled in part. Consistent with this ruling, the
Court adopts the Report and Recommendation in part and
respectfully declines to adopt it in part.
Federal Home Loan Mortgage Corporation (“Freddie
Mac”) did not object to the Report and Recommendation.
Neither party objected to the procedural history and facts as
set forth in the Report and Recommendation. Thus, the Court
cites to the Report and Recommendation in recounting the
background of this case.
Facts and Procedural Posture
alleges that in July of 2013, software used and operated by
Freddie Mac erroneously listed the mortgage on her home as
90-days or more delinquent within the past year. (R&R at
1.) As a result of this classification, when Dunnigan later
sought to refinance her home, Freddie Mac allegedly sent
numerous “caution certificates” as part of the
feedback it provided to loan originators who inquired into
Dunnigan's credit scores. (Id. at 1-2.) Due at
least in part to these caution certificates, Dunnigan was
unable to obtain refinancing for several months and when she
finally did, the mortgage terms were less favorable. (See
id. at 2.)
Dunnigan investigated the reason for the caution
certificates, Freddie Mac allegedly represented to her that
Equifax was erroneously reporting the delinquency on her
mortgage. (Id.) Based on this representation,
Dunnigan sued Equifax in 2014 for the erroneous reporting
(hereinafter, the “Equifax Case”). (Id.)
As part of discovery in the Equifax Case, Dunnigan subpoenaed
records from Freddie Mac and deposed company representatives.
(See id. at 6, 11-12.) Dunnigan alleges that it was
through this discovery that she finally learned that Freddie
Mac-not Equifax-was the source of the problem. (See
id.) The Equifax Case was settled and dismissed in 2015.
(Id. at 2.)
of 2015, Dunnigan brought the present suit against Freddie
Mac. (Id.) Originally, Dunnigan alleged two
violations of the Fair Credit Reporting Act
(“FCRA”), but subsequently added various state
law tort claims over the course of three amendments to her
Complaint. (Id.) At a hearing on Freddie Mac's
motion to dismiss, this Court made clear that although
Dunnigan's FCRA claims would survive for the time being,
she had “an uphill battle” to show that Freddie
Mac was a credit reporting agency, which was a legal issue
and not a question of fact. (See Hr'g Tr. dated
2/12/2016 at 18 [Doc. No. 45].) Ultimately, the parties
resolved their dispute when Freddie Mac made a Rule 68 Offer
of Judgment, which Dunnigan accepted. (See Rule 68
Offer of Judg. and Acceptance (“Offer of Judg.”)
[Doc. No. 69].)
elements of the Offer of Judgment are important here. First,
the Offer makes clear that it “does not
constitute an admission of any liability or wrongdoing by
Freddie Mac regarding Plaintiff's claims against Freddie
Mac or otherwise.” (Id. at 5 (emphasis
added).) Second, the Offer included “an additional
amount for Plaintiff's reasonable attorneys' fees and
costs, in an amount to be determined by the Court.”
(Id. at 4.)
to the Offer and the FCRA, Dunnigan moved for attorney's
fees. (R&R at 3-4.) Ultimately, she sought $205, 143.33
related to her FCRA claims, as well as a five percent
“enhancement” of those fees. (Id. at
5.) Magistrate Judge Mayeron (“Judge Mayeron”)
found that Dunnigan was entitled to fees generally, but not
the full amount that she sought. (See id. at 35-36.)
Specifically, Judge Mayeron concluded that Dunnigan was
entitled to $99, 140.57 in fees and declined to enhance that
amount by the requested five percent. (Id. at 21-22,
relevant part, Judge Mayeron recommended the following
reductions to Dunnigan's fees. First, although she agreed
Dunnigan was entitled to some fees associated with the work
performed in the Equifax Case, Judge Mayeron recommended that
only fees associated with work that ultimately assisted
Dunnigan in her case against Freddie Mac should be awarded.
(See id. at 23-25.) Judge Mayeron found that
Dunnigan failed to provide the factual basis showing that
many of her fees from the Equifax Case related to Freddie Mac
and thus recommended reducing the request by $31, 204.15.
(Id. at 24-25.)
Judge Mayeron recommended further reducing Dunnigan's
fees by $20, 335.86 for “unnecessary work”
performed on matters such as summary judgment motions that
were never filed, preparing jury instructions and verdict
forms for a trial that was never close to occurring, and
drafting motions to compel that were never filed.
(Id. at 29-30.) Third, Judge Mayeron further reduced
Dunnigan's fees by $43, 255.24 for “excessive
hours.” (See id. at 31-35.) For example, Judge
Mayeron concluded that eleven hours preparing a Rule 26(f)
report and 105 hours related to the first and second motions
to dismiss were unreasonable. (Id. at 31-34.)
Fourth, Judge Mayeron recommended further reducing
Dunnigan's fees by $11, 207.51 for administrative tasks
performed by an attorney (and billed at the attorney's
rate) and vague billing entries that prevented Judge Mayeron
from determining whether they were reasonably necessary or
(See id. at 25-29.) In total, Judge Mayeron
recommended reducing Dunnigan's requested fees by $106,
002.76. (Id. at 35.)
filed objections to the Report and Recommendation.
(See Objs.) Specifically, she objects to the
recommended reductions for work performed in the Equifax
Case, unnecessary or excessive work, and the denial of her
“modest upward adjustment to the lodestar.”
(Id. at 1.) Freddie Mac filed a response in which it
agreed with Judge Mayeron's recommendations and urged
this Court to adopt the Report and Recommendation.
(See Def.'s Reply Mem. of Law in Opp.
(“Mem. in Opp.”) [Doc. No. 93].)