United States District Court, M.D. Louisiana
RULING AND ORDER
W. deGRAVELLES UNITED STATES DISTRICT JUDGE.
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.
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).
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.
The Motion for Attorneys' Fees, the Motion to Strike and
the Motion to Stay.
Community's Motion for Attorneys' Fees
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.
Plaintiff's Motion to Strike and Motion to Stay
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.)
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.)
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).)
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,
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.
Community's Response to Motion to Strike/Stay
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.)
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).)
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).)
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
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.
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
Plaintiff's Reply to ...