Opinion
Case No: 2:04 CV 567 DAK.
August 3, 2005
REPORT AND RECOMMENDATION ON MOTION FOR SUMMARY JUDGMENT and MOTION TO DISMISS; ORDER VACATING HEARING
This case is referred to the undersigned magistrate judge under 28 U.S.C. § 636(b)(1)(B) and is presently before the court on Defendants' Motion for Summary Judgment and Defendants' Motion to Dismiss.
Motion for Summary Judgment on Claims I and II of Plaintiff's Complaint, filed April 4, 2005, docket no. 36.
Motion to Dismiss Complaint with Prejudice (Motion to Dismiss), filed July 8, 2005, docket no. 56.
Background
Plaintiff's complaint contains three causes of action: (a) Claim I is asserted under Utah Code Ann. § 13-25a-101, et seq. (the Utah Telephone and Facsimile Solicitation Act); (b) Claim II is asserted under 47 U.S.C. § 227 (restricting use of automated telephone equipment), and also under Utah Code Ann. § 13-25a-107; and (c) Claim III is asserted under 15 U.S.C. § 1692, the Fair Debt Collection Practices Act (FDCPA). Defendant World Financial Network National Bank (WFNNB) made two separate offers of judgment, which were both accepted by plaintiff:(a) with respect to Claim III, the amount of $1,750.00, together with accrued costs, and (b) with respect to Claims I and II, the amount of $500.00, together with accrued costs, plus reasonable attorneys' fees as determined by the court. Plaintiff accepted both offers of judgment.
Motion for Summary Judgment on Claims I and II
On June 24, 2005, the magistrate judge issued an order taking the Motion for Summary Judgment on Claims I and II under advisement. In the order, the magistrate judge indicated that the motion appeared moot due to the Acceptance of Offer of Judgment. The order further stated that "[a]fter July 1, 2005, the magistrate judge will moot the Motion for Summary Judgment if no additional material is submitted."It appears that the only dispute remaining on these claims was the amount of "accrued costs, plus reasonable attorneys' fees, as determined by the court." WFNNB has paid Plaintiff the sum of $1,155.75. Plaintiff has not submitted any information on this issue to the court. However, WFNNB included exhibits in which Plaintiff has asserted to WFNNB's counsel that he is entitled to attorneys' fees in the amount of $2,427.35. To support of the amount of attorney's fees, Plaintiff's counsel, Mr. Ady, gave WFNNB's counsel a copy of his billing statement. That billing statement shows that Mr. Ady spent a total of 11.29 hours on this matter.
Acceptance of Offer of Judgment at 1.
Motion to Dismiss Complaint, exhibit E, copy of check.
See id., exhibit B containing Plaintiff's Proposed Judgment on Acceptance of Offer of Judgment.
Id., exhibit D.
WFNNB argues, however, that billing statement also reveals that at least 2.14 of those hours related solely to the FDCPA claim (Claim III), and not Claims I and II of the complaint. Furthermore, of the remaining time shown on Plaintiff's billing statement, it is clear that at least a portion of the time related to Claim III, yet Plaintiff has failed to apportion the time between the various claims. Moreover, WFFNB contends that in response to WFNNB's motion for summary judgment, Plaintiff's counsel acknowledged that Claim II under 47 U.S.C. § 227 was going to be withdrawn. Given Plaintiff's concession that that particular claim should be withdrawn, no "reasonable" fees could have been incurred in connection with that claim.
Id. at 3.
WFNNB further contends only of 3.05 hours of Mr. Ady's time is attributable to Claim I of the complaint. While there are 9.15 hours of Mr. Ady's time which Mr. Ady's time records do not specifically allocate to a specific claim, WFFNB assumes that this time should be apportioned 33% to Claim I, 33% to Claim II (which time is not "reasonable" or recoverable given plaintiff's concession that the claim was to be withdrawn), and 33% to the FDCPA claim. Thus, at Mr. Ady's billing rate of $215.00 per hour, plaintiff would be entitled to the sum of $655.75 for "reasonable" attorneys' fees incurred in connection with Claims I and II of the Complaint, arising out of the 3.05 hours allocable to that claim. WFNNB has therefore paid Plaintiff the sum of $1,155.75, which includes $500 due under the offer of judgment, and the amount of $655.75 for attorneys' fees incurred with Claims I and II.
Id., exhibit E, copy of check.
The court finds WFNNB's argument as to the amount of attorneys' fees on Claims I and II to be well taken, especially in light of the fact that Plaintiff has failed to submit any information on this issue to the court. There is actually nothing to controvert WFNNB's position. Because WFNNB has paid in full the amounts due under the offer of judgment on Claims I and II, it is recommended that the motion for summary judgment be stricken as moot.
Motion to Dismiss
On July 14, 2005 the magistrate judge issued an order imposing deadlines for Plaintiff to respond to WFNNB's Motion to Dismiss. Plaintiff did not file a response to the motion to dismiss. Thus, pursuant to DUCivR 7-1(d), the court could dismiss the case on this basis alone. However, the dismissal is substantively merited also. As stated above, WFNNB has paid the full amount due under the accepted offer of judgment on Claims I and II. WFNNB states that it has paid the full amount of $1,911.95, the total amount it was obligated to pay under the Proposed Judgment on Acceptance of Offer of Judgment. This statement is not opposed. Because WFNNB has paid in full the amounts due under the offers of judgment, it is recommended that the district judge grant Defendants' motion to dismiss and dismiss the case with prejudice.
See Order, filed July 14, 2005, docket no. 57.
"Failure to respond timely to a motion may result in the court's granting the motion without further notice." DUCivR 7-1(d).
This total includes: (a) $1,000, the maximum amount of statutory damages; (b) $750.00 in attorneys' fees under Claim III; and (c) $161.95 in costs incurred.
See Defendant's Motion to Dismiss Complaint, Exhibit A containing Plaintiff's Proposed Judgment on Acceptance of Offer of Judgment.
RECOMMENDATION
Based upon this report, it is recommended that the district judge:
1. STRIKE Defendants' Motion for Summary Judgment as MOOT.
2. GRANT Defendants' Motion to Dismiss and DISMISS the complaint with prejudice.
Docket no. 36.
Docket no. 56.
Copies of the foregoing Report and Recommendation are being mailed to the parties, who are hereby notified that they have the right to object to the Report and Recommendation. The parties are further notified that they must file any objections to the Report and Recommendation with the clerk of the district court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.
ORDER
Based on this Report and Recommendation, IT IS HEREBY ORDERED that the hearing set for the Motion to Dismiss on August 9, 2005 at 2:00 p.m. in Room 477 before Magistrate David Nuffer is VACATED.