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Weaver v. Performant Recovery, Inc.

United States District Court, D. Kansas

September 29, 2014

MATTHEW JOEL WEAVER, Plaintiff,
v.
PERFORMANT RECOVERY, INC., Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, Chief District Judge.

Plaintiff Matthew Joel Weaver ("plaintiff") sought monetary damages against defendant Performant Recovery, Inc. ("defendant") for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and the Kansas Consumer Protection Act ("KCPA"), K.S.A. § 50-623 et seq. On April 2, 2014, the parties reached a confidential settlement during mediation. Dkt. 28, at 2. As part of the settlement, the parties agreed to have the court determine reasonable attorney's fees. Dkt. 28, at 3. This matter is therefore before the court on plaintiff's Motion for an Award of Costs and Attorney Fees (Dkt. 27).

I. Factual and Procedural Background

In his Complaint, plaintiff alleged that, beginning on February 21, 2013, defendant's agents and/or employees began contacting him regarding an alleged debt. Plaintiff notified defendant of his ongoing bankruptcy but claimed that defendant continued to pursue the outstanding debt. According to plaintiff, on March 5, 2013, one of defendant's agents "insisted that plaintiff make a payment, threatened to destroy' plaintiff's credit and stated she would continue to call plaintiff despite being advised of the bankruptcy automatic stay." Dkt. 1-1, ¶ 10. Plaintiff retained attorney A. Scott Waddell ("Waddell") on or about April 11, 2013. On that same day, plaintiff sent defendant a Nelson v. Miller letter which included an offer to settle for $5, 900. On May 10, 2013, in response to plaintiff's demand, defendant denied any liability but made a settlement offer in the amount of "$1, 000.00 in an effort to avoid the time and expense of litigation." Dkt. 28, at 2. Plaintiff rejected the offer.

On July 7, 2013, plaintiff filed a Petition for Damages for defendant's alleged violations of the FDCPA and KCPA in the Johnson County, Kansas District Court (Dkt. 1-1). On August 9, 2013, defendant removed this matter to the United States District Court for the District of Kansas (Dkt. 1). On that same date, defendant answered plaintiff's Petition, denying any and all liability and requesting an award of attorney's fees (Dkt. 3). On April 2, 2014, this matter was successfully mediated, resulting in a confidential settlement. Dkt. 28, at 2-3. As part of the settlement, the parties agreed to have this court determine reasonable attorney's fees. Dkt. 28, at 3.

II. Legal Standard

The FDCPA allows for attorney's fees for successful litigants. The Act provides, in relevant part:

Except as otherwise provided in this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of...
(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court
....

15 U.S.C. § 1692k.

Likewise, the KCPA provides for reasonable attorney's fees following a settlement. The Act specifically provides:

(e) Except for services performed by the office of the attorney general or the office of a county or district attorney, the court may award to the prevailing party reasonable attorney fees, including those on appeal, limited to the work reasonably performed if:
(1) The consumer complaining of the act or practice that violates this act has brought or maintained an action the consumer knew to be groundless and the prevailing party is the supplier; or a supplier has committed an act or practice that violates this act and the prevailing party is the consumer; and

(2) an action under this section has been terminated by a judgment, or settled.

K.S.A. § 50-634(e)(1)-(2).

III. Legal Analysis

Plaintiff requests an award of fees in the amount of $20, 737.46, which represents $20, 432.50 for 75.20 hours of work and $304.96 for costs and fees associated with the litigation. Dkts. 36, 36-1. Defendant contests the amount of this award given the limited amount of work done and the early settlement and requests that the court award plaintiff and/or his counsel no more than $2, 500. Dkt. 29. Specifically, defendant argues that the claimed fees and costs are unreasonable and unsustainable due to: (1) unnecessary billings; (2) excessive and duplicative billings; and (3) billings for administrative, paralegal, and associate tasks. Dkt. 29, at 2. Defendant also disputes the hourly rate. Dkt. 29, at 2.

As a threshold matter, defendant argues that the fee request does not comply with either the Federal Rules of Civil Procedure or the Kansas Local Rules and should fail altogether on this basis alone. The court therefore deals with this threshold matter at the outset.

A. Failure to Comply with Federal Rules of Civil Procedure and Kansas Local Rules

According to defendant, both the Federal Rules of Civil Procedure and the Kansas Local Rules prevent a court from considering a motion to award attorney's fees until after the moving party has advised the court that the parties were unable to reach an agreement with regard to the award. Dkt. 29, at 4. Defendant alleges that attorney Waddell first emailed defense counsel regarding the issue of attorney's fees on April 24, 2014, at 12:09 pm. Dkt. 31, at 75. That same day, allegedly without waiting for a reply from defendant, Waddell filed the instant fee request. Defendant argues that Waddell's failure to abide by the applicable rules, on its own, precludes his fee claim. Dkt. 29, at 4. The court disagrees.

Federal Rule of Civil Procedure 54 sets forth the requirements for seeking fees and costs. With regard to attorney's fees, the rule states as follows:

(d) Costs; Attorney's Fees
(2) Attorney's Fees...
(A) A claim for attorney's fees and related nontaxable expenses must be made by motion....
(B) Unless a statute or court order provides otherwise, the motion must:
(1) be filed no later than 14 days after the entry of judgment;
(2) specify the judgment and the statute, rule, or other grounds entitling the movant to the award;
(3) state the amount sought or provide a fair estimate of it; and
(4) disclose, if the court so orders, the terms of any agreement about fees for the services for ...

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