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Raburn v. Wiener, Weiss & Madison

United States District Court, M.D. Louisiana

December 9, 2019

JONATHAN RABURN
v.
WIENER, WIESS & MADISON ET. AL

          RULING AND ORDER

          JOHN W. deGRAVELLES UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on (1) Defendants' [Community Management LLCs'] Motion for Attorneys' Fees and Costs (“Motion for Attorneys' Fees”); (Doc. 100) (2) Plaintiff's Motion to Strike Community Management, LLC's Untimely Motion for Attorney's Fees (“Motion to Strike”); (Doc. 108) (3) Plaintiff's Motion to Stay Plaintiff's Response to Defendant Community Management, LLC's Untimely Motion for Attorney's Fees (“Motion to Stay”); (Doc. 109) and (4) Plaintiff's Motion for Rule 11 Sanctions for Community Management LLC's Untimely Motion for Attorney's Fees, (“Rule 11 Motion”) (Doc. 117). All motions are fully briefed. Oral argument is not necessary. Having considered the arguments of the parties, the facts and the law, and for the reasons given below, Plaintiff's Motion to Strike is granted and Defendants' Motion for Attorneys' Fees is struck. Plaintiff's Motion to Stay is therefore denied as moot. Plaintiff's Rule 11 Motion is granted in part and denied in part.

         FACTUAL BACKGROUND

         Plaintiff filed the case on March 17, 2017 alleging violations of the Fair Debt Collections Practices Act against defendants Wiener, Weiss & Madison (“WWM”) and Community Management LLC (“Community”). (Complaint, Doc. 1.) Community answered the Complaint and the Amended Complaint on July 3, 2017. (Doc. 27, 28.) On February 1, 2018, Community filed a Motion for Summary Judgment. (Doc. 55.) The parties fully briefed the Motion for Summary Judgment and provided supplemental briefs on whether Community was a creditor. (Docs. 61, 68, 72, and 73.) The Court entered a Ruling and Order and Judgment granting summary judgment to Community on May 7, 2018. (Docs. 74, and 75.) Plaintiff timely filed a Notice of Appeal of the Court's Ruling and Order. (Doc. 77.) On March 6, 2019, the Fifth Circuit issued its Mandate affirming the Court's ruling granting summary judgment. (Doc. 87.) On May 15, 2019, Community filed the Motion for Attorneys' Fees. (Doc. 100).

         Community's Motion for Attorneys' Fees was filed 373 days after the Court issued the Judgment in favor of Community on May 7, 2018. Community's Motion for Attorneys' Fees was filed 70 days after the Fifth Circuit issued the Mandate affirming the Court's Summary Judgment in its favor.

         DISCUSSION

         I. The Motion for Attorneys' Fees, the Motion to Strike and the Motion to Stay.

         a. Parties' Arguments

         1. Community's Motion for Attorneys' Fees

         Community's Motion for Attorneys' Fees argues that Plaintiff “is an attorney and gadfly who used the federal courts to harass Community” by filing the lawsuit alleging FDCPA violations. (Doc. 100-1 at 1.) Community asks the Court to award attorney's fees and costs because they allege Plaintiff's case was brought in bad faith and for the purpose of harassment. (Doc. 100-1 at 3.) First, Community argues that as an attorney who practices FDCPA law, Plaintiff knew or should have known (or at the very least should have researched) that Community was not a debt collector as defined by the FDCPA. Id. Second, Community asserts that Plaintiff filed the Complaint to legally extort Community rather than pay his homeowners association dues. Third, Community states that their attorney's fees were increased because of Plaintiff's appeal. Id. Last, Community points out that Plaintiff was found to be acting in bad faith by a district court in Texas, when he tried to recover $130, 000.00 in attorney's fees in an FDCPA case wherein the actual damages were a nominal $1, 000.00. In reviewing the denial of attorney's fees, the Fifth Circuit pointed out that “the FDCPA does not support avaricious efforts of attorneys seeking a windfall. Because grossly excessive attorney's fee requests directly contravene the purpose of the FDCPA, these tactics must be deterred.” (Id. at 4.) Therefore, Community concludes it is entitled to attorney's fees for their defense in the lawsuit.

         2. Plaintiff's Motion to Strike and Motion to Stay

         Plaintiff did not respond to Community's Motion for Attorneys' Fees. Instead Plaintiff filed a Motion to Strike. (Doc. 108) and a Motion to Stay. (Doc. 109.)

         In his Motion to Strike, Plaintiff argues that Community's Motion for Attorneys' Fees is untimely under Federal Rule of Civil Procedure 54(d)(2)(B)(i), which mandates that a motion for attorney's fees must be filed no later than 14 days after entry of judgment. (Doc. 108 at 2.) As such, Plaintiff maintains that Community's deadline was May 21, 2018. Because Community did not file its Motion until May 15, 2019-359 days after the deadline-Plaintiff asks the Court to strike the request for attorney's fees as untimely. Id. Plaintiff also points out that even if the Court were to toll the deadline until after the Fifth Circuit entered its Appellate Judgment on March 6, 2019, the Motion for Attorneys' Fees was still untimely as the deadline still would have been March 20, 2019. (Doc. 108-1 at 2.)

         Plaintiff argues that the timing requirements under Rule 54(d) are mandatory. (Doc. 108-2 at 3, (citing Heck v. Triche, 775 F.3d 265, 274 (5th Cir. 2014)).) Furthermore, Plaintiff maintains that the requirement cannot be modified except by statute or court order. (Doc. 108-2 at 3.) Furthermore, Plaintiff points out that under Fifth Circuit case law, the entry of judgment that starts the clock for Rule 54(d) is the judgment by the district court, not the appellate court. (Doc. 108-2 at 3-4, (citing United Indus., Inc. v. Simon Hartley, Ltd., 91 F.3d 762, 765-766 (5th Cir. 1996)).) Plaintiff argues that because the Motion for Attorneys' Fees is untimely, Community waived its claim for attorney's fees and that it would be plain error for the Court to now consider the Motion. (Doc. 108-2 at 4-5, (citing United Indus., 91 F.3d at 766).)

         Plaintiff argues that to extend the deadline under Rule 54(d)(2)(B)(i), Community must show that its failure to file the Motion for Attorneys' Fees was the result of excusable neglect under Rule 6, which it failed to address in its Motion. (Id. at 3.) Plaintiff maintains that the failure to plead excusable neglect means that Community waived the issue and is barred from asserting it. (Doc. 108-2 at 2.) Furthermore, Plaintiff points out that ignorance or mistake of the law do not constitute excusable neglect under Rule 6. (Doc. 108-3 at 7, (citing Lagarde v. Metz, CV 13-805-RLB, 2017 WL 2371817, at 5 (M.D. La. May 31, 2017)).)

         Plaintiff's Motion to Stay, argues that the Court should stay his response to the Motion for Attorneys' Fees because the issues raised by the Motion for Attorneys' Fees will become moot if the Court grants the Motion to Strike. The Motion to Stay recites the same arguments regarding the untimeliness of the Motion for Attorneys' Fees.

         3. Community's Response to Motion to Strike/Stay

         Community acknowledges that it did not timely file its Motion for Attorneys' Fees under Federal Rule of Civil Procedure 54(d). (Doc. 112 at 1.) Community asks the Court to hear the merits of the Motion for Attorneys' Fees because: (1) the Court has jurisdiction to hear the issue of fees and costs; (2) the Court has discretion to hear the motion for attorney's fees and costs; (3) under the particular circumstances of this case, the Court should award attorney's fees and costs. (Doc. 112 at 1.)

         First, regarding jurisdiction, Community points out that a district court does not lose jurisdiction over attorney's fees when it is not addressed by the district court or appellate court. (Doc. 112 at 2, (citing United Indus., 91 F.3d at 764).)

         Second, Community argues that Rule 54(d) does not apply because “the FDCPA allows an award of attorney's fees in favor of a prevailing defendant where the plaintiff's FDCPA claims are brought in bad faith and for the purpose of harassment.” (Doc. 112 at 3, (citing 15 U.S.C. § 1692(k)(a)(3)).) Community relies on the Fifth Circuit's statement in a footnote that “the motion requirement is waived if the substantive law governing the action provides for recovery of such fees as an element of damages to be proved at trial.” (Doc. 112 at 2, (citing United Indus., 91 F.3d at 776, n.7).)

         Community goes onto argue that even if Rule 54(d) applies, the Court may waive the time requirements if proper notice is given that attorneys' fees are at issue. Community cites Romaguera v. Gegenhimer, 162 F.3d 893 (5th Cir. 1998) which affirmed a district court's award of attorney's fees requested nearly a year after the entry of final judgment. In Romaguera the Fifth Circuit states:

This Circuit has previously held that one of the key functions of Rule 54(d)(2) is to ensure that parties properly notify their counterparts of their requests for attorneys' fees. Id. at 766, (citing Fed.R.Civ.P. 54 advisory committee's note (subdivision (d))). Rule 54(d)(2) sets out the minimum requirements needed to effectuate a valid notice of the request. The failure to file the request would ordinarily result in a request being denied. However, a court may deem a notification sufficient if it satisfies the intended purposes of Rule 54(d)(2).

162 F.3d at 896. In addition, Community points the Court to the Fifth Circuit decision in Green v. Administrators of Tulane Educational Fund, 284 F.3d 642, 664 (5th Cir. 2002). (Doc. 112 at 4.) In Green, the Fifth Circuit explained that Rule 54 is not jurisdictional and reiterated that if a court deems notice sufficient to satisfy the purposes of Rule 54(d), it may allow untimely consideration of a motion for attorneys fees. (Doc. 112 at 4, (citing Green v. Administrators of Tulane Educ. Fund, 284 F.3d 642, 664 (5th Cir. 2002), as amended on denial of reh'g and reh'g en banc (Apr. 26, 2002) (overruled on other grounds)).) Community argues that Plaintiff had notice that attorney's fees were at issue and therefore that the Court can waive the time requirement under Rule 54(d) because: (1) Plaintiff requested attorney's fees as permitted under the FDCPA; and (2) Plaintiff is an attorney who was cited in a separate case by the Fifth Circuit as being “avaricious” and “grossly excessive” in his fee claims.

         Last, Community argues that the Court should hear the merits of the fees claim because Plaintiff's actions in this case were a means of harassing the homeowner's association. Community raises the same arguments as to why the Court should find Plaintiff acted in bad faith and for the purpose of harassment as expressed in its Motion for Attorneys' Fees.

         4. Plaintiff's Reply to ...


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