United States District Court, D. Minnesota
B. Schwiebert, DBS Law LLC, for Plaintiff
Derrick N. Weber and Stephanie Shawn Lamphere, Messerli &
Kramer, P.A., for Defendant
ORDER AWARDING ATTORNEY'S FEES AND COSTS
BOWBEER, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff Jason Heroux's
Motion for Determination of Amount of Reasonable Attorney
Fees [Doc. No. 42], following a settlement of the underlying
action as a part of which the parties stipulated that the
Court would determine the amount of the award to Heroux for
attorney's fees and costs pursuant to the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 et
seq. [Doc. No. 37]. Heroux seeks an award of attorney's
fees in the amount of $41, 720 and costs in the amount of
$400. For the reasons set forth below, the Court awards
attorney's fees in the amount of $22, 946 and costs in
the amount of $400.
The State Court Action
factual background underlying this case is largely set forth
in an Order by the Honorable David S. Doty on Defendants'
Motion for Judgment on the Pleadings. [Doc. No. 29.] Briefly,
Callidus Portfolio Management Inc. (“Callidus”),
sought to collect on a debt owed by Plaintiff Jason Heroux.
Callidus hired Defendant Messerli & Kramer, P.A.
(“Messerli”) as counsel to assist in collecting
the debt. (Id.) Messerli served Heroux in April 2016
with a state court complaint seeking $1665.11 plus interest.
Heroux answered the complaint in March 2017 and denied all
liability. Messerli filed the complaint in Hennepin County
District Court and served on Heroux a document entitled
“Plaintiff's First Set of Interlocking
Discovery.” Heroux did not respond to the discovery,
and, further, did not respond or appear when Messerli, on
behalf of Callidus, moved for summary judgment against him.
On June 23, 2017, the Hennepin County District Court entered
judgment against Heroux in the amount of $2, 881.02.
The Federal Court Action
November 16, 2017, Heroux filed the Complaint in this case
[Doc. No. 1], alleging that Callidus' and Messerli's
conduct in connection with the state court action violated
multiple provisions of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq.
[Doc. No. 1.] Heroux alleged several violations of the FDCPA,
including that Defendants' use of the “Interlocking
Discovery” in their efforts to collect a consumer debt
from Heroux was intentionally misleading and that the
document was drafted with the purpose of causing confusion
and curbing Heroux's responses. (Compl. ¶ 13 [Doc.
January 3, 2018, Heroux made a settlement demand of $3, 000,
inclusive of attorneys' fees and costs. (Schwiebert Decl.
¶ 31 [Doc. No. 44].) On January 19, 2018, Defendants
filed a joint Answer [Doc. No. 10], and shortly thereafter
moved for judgment on the pleadings [Doc. No. 12], arguing
that Heroux's claims were barred by res judicata
and collateral estoppel in view of the prior state court
proceedings, that the claims were also barred by the
Rooker-Feldman doctrine because they were an
impermissible attempt to collaterally appeal the state court
decision, that Callidus was not a “debt
collector” for purposes of the FDCPA, and that
Heroux's FDCPA claims against both Defendants also failed
on the merits. With regard to the particular allegations
concerning the “Interlocking Discovery, ”
Defendants urged, inter alia, that Judge Doty should
not rely on a previous decision in which United States
District Judge Ann D. Montgomery had permitted an FDCPA case
to go forward on a similar claim, arguing that the issue in
that case had not been fully briefed. (Defs.' Mem. Supp.
Mot. J. Pleadings at 29 [Doc. No. 14] (citing Dakowa v.
MSW Capital, LLC, No. CV 16-2753 ADM/FLN, 2017 WL
662975, at *1 (D. Minn. Feb. 17, 2017)).)
Doty heard argument on Defendants' Motion for Judgment on
the Pleadings and issued an order on May 1, 2018, granting it
in part and denying it in part. [Doc. No. 29]. Judge Doty
rejected Defendants' claim preclusion and
Rooker-Feldman arguments (id. at 3-7), but
agreed that Callidus was not a debt collector for purposes of
the FDCPA and therefore dismissed with prejudice all claims
against Callidus (id. at 8). As against Messerli,
Judge Doty dismissed all of the claims of alleged FDCPA
violations except the claim concerning Messerli's use of
the “Interlocking Discovery.” As to that claim he
found Judge Montgomery's decision in Dakowa
instructive, and concluded that Heroux had stated a plausible
claim for relief. (Id. at 11.)
Court held a pretrial scheduling conference with counsel for
the parties on February 22, 2018. [Doc. No. 17.] On May 2,
2018, counsel for Heroux and Messerli took part in a
telephonic status conference with the Court to discuss the
prospects for settlement. [Doc. No. 30]. Over the next six
weeks, the parties engaged in settlement negotiations, and by
June 15, 2018, they had agreed to the terms of a settlement.
The negotiated settlement provided for a payment by Messerli
to Heroux of $1, 500 and further provided that Messerli would
pay Heroux's costs and attorneys' fees. (Schwiebert
Decl. ¶ 36 [Doc. No. 44].) However, they were unable to
reach an agreement regarding the amount of attorneys'
fees. (Schwiebert Decl. ¶ 12 [Doc. No. 44].)
Accordingly, on July 19, 2018, they entered into a
Stipulation for Court Determination of Attorneys' Fees
and Costs and Proposed Briefing Schedule in which they agreed
the Court would decide the issue of attorneys' fees and
costs. [Doc. No. 37.] The Court approved the Parties'
Stipulation. (Order on Stipulation [Doc. No. 41].)
Heroux's Motion for Attorney's Fees
requests $41, 720 in attorney's fees, representing 104.3
hours worked at an hourly rate of $400, plus $400 in costs,
amounting to a total of $42, 120. (Pl.'s Reply Supp. Mot.
at 11 [Doc. No. 49].) Messerli and Callidus argue the Court
should award no more than $5, 000 total in fees and
costs. (Defs.' Mem. Opp'n Mot. at 1 [Doc.
FDCPA allows successful plaintiffs to recover “the
costs of the action, together with a reasonable
attorney's fee as determined by the court.” 15
U.S.C. § 1692k(a)(3). The party seeking an award must
provide evidence to support the reasonableness of the fees,
both as to the hourly rate and the hours worked, and should
“exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary.” Hensley v.