Summary
recommending no award of attorney's fees and costs on plaintiff's motion for default judgment on her FDCPA claim when plaintiff did not request attorney's fees or costs and provided no proof as to either
Summary of this case from Gustafson v. Recovery Servs.Opinion
Civil Action No. ELH-11-01387
02-23-2012
ROBERT SILBAUGH Plaintiff v. OMNI CREDIT SERVICES OF FLORIDA, INC., et al. Defendants
MEMORANDUM
Robert Silbaugh, plaintiff, filed suit in this Court on May 23, 2011 (ECF 1), alleging that the defendant, Omni Credit Services of Florida, Inc., violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq.; the Maryland Consumer Debt Collection Act, § 14-201, et seq. of the Commercial Law Article of the Maryland Code; and the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq. After having been served on September 16, 2011 (ECF 3), the defendant failed to appear, answer, or otherwise defend in this matter. Accordingly, on September 28, 2011, plaintiff asked the Clerk to enter an order of default against the defendant. See ECF 5. On October 4, 2011, the Clerk issued an "Order Of Default" (ECF 6).
Thereafter, on November 22, 2011, pursuant to F. R. Civ. P. 55(b)(2), plaintiff filed a "Notice Of Motion For Default Judgment" ("Motion," ECF 8), which was supported by a Declaration of Plaintiff (ECF 8-1); a Declaration of counsel for the plaintiff, Forrest Mays, Esquire (ECF 8-2); and a Memorandum of Law (ECF 8-3). In the Motion, plaintiff requested statutory damages of $1,000 under the FDCPA, and, pursuant to 15 U.S.C. § 1692(k)(a)(3), costs of litigation and reasonable attorneys' fees. ECF 8-3 at 5. In addition, under the TCPA, plaintiff requested statutory damages of $500 and, because of the nature of the conduct of the defendant, requested treble damages, for a total of $1,500. In conclusion, plaintiff requested "the maximum amount of statutory damages, $1,000.00 for FDCPA violations, $1,500.00 for TCPA violations, and reasonable attorneys' fees and costs. . . ." ECF 8-3 at 7. However, plaintiff did not particularize or itemize his request for attorneys' fees.
On December 13, 2011, pursuant to 28 U.S.C. § 636 and Local Rule 301, this Court referred the matter to Magistrate Judge Susan Gauvey for a Report and Recommendation as to the pending Motion. ECF 9. On January 31, 2012, Judge Gauvey issued a thorough and well considered Report And Recommendation ("Report") (ECF 10). She made the following recommendations, id. at 7-8:
1. That the Court grant plaintiff's Motion For Default Judgment;
2. That the Court award statutory damages under the FDCPA of $1,000.00;
3. That the Court award statutory damages under the TCPA of $500.00 (i.e., damages without trebling).
With regard to the matter of attorneys' fees, Judge Gauvey recognized that, under § 1692(k)(a)(3) of the FDCPA, courts may award "the costs of the action, together with a reasonable attorney's fee." However, Judge Gauvey observed that "plaintiff has not requested any specific amount of attorneys' fees and costs and has provided absolutely no proof as to those matters." Therefore, she said: "Accordingly, no award of attorney's fees or costs is recommended, at this time." Id. at 8.
The time for filing objections as to the Report has passed. See F. R. Civ. P. 72(b); Local Rule 301.5(b). No objections were filed with respect to the Report. Nor has plaintiff's counsel submitted any specific request as to the award of attorney's fees, despite Judge Gauvey's comments and recommendation.
In accordance with F. R. Civ. P. 72(b), I have reviewed the Report for clear error with respect to the determination of the issues to which the Report relates. I find that Judge Gauvey's proposed rulings are correct in all respects. Accordingly, I adopt the Report And Recommendation as my own.
I will, however, permit counsel for plaintiff to submit a petition for costs and attorneys' fees, along with a memorandum and supporting documentation, within 14 days from the date of the entry of the accompanying Order implementing these rulings.
________________________
Ellen L. Hollander
United States District Judge