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Poskovic v. D2 Management, LLC

United States District Court, N.D. Ohio, Eastern Division

December 11, 2019

EMINA POSKOVIC, PLAINTIFF,
v.
D2 MANAGEMENT, LLC, DEFENDANT.

          MEMORANDUM OPINION AND ORDER

          HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the motion of plaintiff, Emina Poskovic (“Poskovic”), for default judgment against defendant, D2 Management, LLC (“D2”), pursuant to Fed.R.Civ.P. 55(b)(2). (Doc. No. [“Mot.”] 10.) Poskovic also seeks attorney's fees and costs pursuant to 15 U.S.C. § 1692k(a)(3). (Id.) For the following reasons, the motion is GRANTED in part and DENIED in part.

         I. Background

         In March 2019, Poskovic (who is a consumer under the Fair Debt Collection Practices Act (“FDCPA”)) began receiving phone calls from D2 (a debt collector under the FDCPA) regarding an unpaid debt from 2006. (Doc. No. 1 [“Compl.”] ¶¶ 5, 14-15.) During a March 14, 2019 phone call, Paskovic expressed skepticism about the veracity of the unpaid debt and requested that D2 verify the debt in writing. (Id. ¶¶ 16-17.) D2 then took an aggressive and derogatory tone. (Id. ¶ 18.) D2 continued to call Poskovic even though the debt was no longer legally enforceable because the statute of limitations had expired. (Id. ¶¶ 19-20.)

         Poskovic filed this action pursuant to the FDCPA, 15 U.S.C. § 1692 et seq. on May 29, 2019. (See Compl.) D2 was served with a copy of the summons and complaint on June 18, 2019. (Doc. No. 6 at 30[1].) D2 has failed to enter an appearance in this action and a default was entered on July 24, 2019. (See Doc. No. 8.) Poskovic filed the instant motion for default judgment on August 27, 2019 (See Mot.)

         II. Discussion

         Under Rule 55, the clerk must enter a default against a party who has failed to plead or otherwise defend against a judgment for affirmative relief. Fed.R.Civ.P. 55(a). After a default is entered, the party seeking relief must apply to the court for a default judgment. Fed.R.Civ.P. 55(b)(2).

         “Once a default is entered against a defendant, that party is deemed to have admitted all of the well pleaded allegations in the Complaint….” Ford Motor Co. v. Cross, 441 F.Supp.2d 837, 846 (E.D. Mich. 2006). While the factual allegations related to liability are taken as true, the court “is required to ‘conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.'” Gilden v. Platinum Holdings Grp., LLC, No. 1:18-cv-343, 2019 WL 590745, at *2 (S.D. Ohio Feb. 13, 2019) (quoting Osbeck v. Golfside Auto Sales, Inc., No. 07-14004, 2010 WL 2572713, at *4 (E.D. Mich. June 23, 2010)).

         A plaintiff who establishes a FDCPA violation may recover (1) actual damages, (2) statutory damages not to exceed $1, 000, and (3) reasonable attorney's fees and costs. 15 U.S.C. § 1692k(a). In her motion for default judgment, Poskovic does not claim any actual damages but seeks $1, 000 in statutory damages and attorney's fees and costs in the amount of $3, 221.80. (Mot. at 40.)

         When awarding statutory damages, the court must consider, among other relevant factors, (1) the frequency and persistence of the debt collector's FDCPA noncompliance, (2) the nature of the noncompliance, and (3) whether the noncompliance was intentional. 15 U.S.C. § 1692k(b). Accepting the pleadings as true, D2 made at least two calls to Poskovic, though the exact number of calls is unclear from the complaint. (Compl. ¶¶ 14-19.) Poskovic asserts that D2 violated the FDCPA by falsely representing that the debt was actionable when, in fact, collection was time-barred. (Compl. ¶¶ 20, 22-32.) D2 knew the 2006 debt was “time-barred and was merely trying to influence [Poskovic] to pay the debt without dispute.” (Id. ¶ 32.) Because the complaint alleges several intentional FDCPA violations-which must be taken as true-the Court finds it is appropriate to award the full $1, 000 in statutory damages.

         Poskovic also requests $3, 221.80 in attorney's fees but she has failed to establish that this amount is reasonable. See Thompson v. Citizens Nat'l Bank, No. 1:14-CV-1197, 2016 WL 7238835, at *3 (N.D. Ohio Dec. 15, 2016) (“The party seeking attorney fees bears the burden of proving the reasonableness of the hourly rates claimed.”); Dowling v. Litton Loan Servicing LP, 320 F. App'x. 442, 447 (6th Cir. 2009) (“A district court has broad discretion to determine what constitutes a reasonable hourly rate for an attorney.”) (quotation marks and citation omitted). Consideration of Poskovic's request for attorney's fees is made under the “lodestar” approach. See Bldg. Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1401 (6th Cir. 1995). In making the lodestar calculation, “[t]he most useful starting point ... is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).[2]

         Along with motion for default judgment, Poskovic's counsel submitted the affidavit of attorney Joseph S. Davidson, (the “Davidson Affidavit”) (Doc. No. 10-2) and an “itemization of fees and costs” (the “Invoice”) setting forth the fees and costs associated with this matter as $3, 221.80 ($2, 762.50 in attorney's fees and $459.30 in costs). (Doc. No. 10-1 [Invoice].) The Invoice outlines the work performed and the time spent on each activity but provides very little additional detail. The Invoice indicates that two timekeepers-J. Davidon and M. Barry-spent a total of 11.1 hours working on this matter. (See id.) Neither the Invoice, nor the Davidson Affidavit, explicitly identify which timekeepers are attorneys.[3] Poskovic's counsel also failed to provide the timekeepers' hourly rate. Conveniently, both timekeepers have entries for precisely one hour, so the Court is able to deduce their rates-$375 for J. Davidson and $125 for M. Barry. The Court finds that the number of hours expended on this matter are reasonable given the scope and nature of the case.

         Poskovic has failed to establish that her out-of-state attorney's rates are reasonable. The community market rule is used to determine a reasonable hourly. Martinez v. Blue Star Farms, Inc., 325 F.R.D. 212, 221 (W.D. Mich. 2018) (citing Hadix v. Johnson, 65 F.3d 532, 536 (6th Cir. 1995)). Under the rule, reasonable attorney fees are to be calculated based on the prevailing rate in the relevant community. Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 350 (6th Cir. 2000) (quotation marks and citation omitted). The prevailing market rate is the rate “which lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record....” Id. Poskovic's counsel is from Illinois. But Poskovic has not argued that she was unable to locate competent local counsel to handle her case, [4] nor has she argued that an exception to the community market rule is appropriate. As such, the Court will assess the reasonableness of the requested rates by looking to the prevailing market rate in the greater-Cleveland area.

         When considering a motion for attorney's fees, a timekeeper's “experience and expertise are important factors in determining whether a requested rate is reasonable.” Trs. of the Bldg. Laborers Local 310 Pension Fund v. Able Contracting Grp., Inc., No. 06CV1925, 2009 WL 792472 at *5 (N.D. Ohio Mar. 23, 2009) (collecting cases). The Davidson Affidavit, however, does not provide any support (such as the experience and expertise of the listed ...


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