United States District Court, D. Massachusetts
RONNIE MILLS, AS EXECUTOR OF THE ESTATE OF CINTOWAY MILLS, DECEASED, PLAINTIFF,
CHARLES TURNER, DEFENDANT.
MEMORANDUM AND ORDER
November 29, 2016, plaintiff Ronnie Mills, as executor of the
estate of Cintoway Mills, filed an amended complaint alleging
that defendant Charles Turner violated the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692 et seq.
(the "FDCPA"). The three-count amended complaint
alleges the following causes of action against defendant: (1)
failure to send a debt validation notice ("Validation
Notice") in violation of 15 U.S.C. §§1692g
(Count One); (2) misrepresentation in connection with the
collection of a debt in violation of 15 U.S.C.
§§1692e (Count Two); and (3) unfair or
unconscionable means to collect or attempt to collect a debt
in violation of 15 U.S.C. §§ 1692f (Count Three).
Plaintiff seeks statutory damages, costs and attorney's
filed a motion for summary judgment on all counts. Defendant
filed a cross motion for summary judgment.
July 10, 2017 Report and Recommendation (the
"R&R"), the Magistrate Judge recommended that
the plaintiff's summary judgment motion be: allowed with
respect to Count Two and the §1692g overshadowing claim
in Count One; denied as to Count Three and the
§1692g(a)(4) claim in Count One; and denied without
prejudice as to the request for statutory damages, costs and
attorney's fees. The Magistrate Judge ordered plaintiff
to advise the court within 14 days from the date of the
Report and Recommendation whether he wants to proceed with
Count Three or voluntarily dismiss that count, and whether he
wishes to proceed to trial regarding the §1692g(a)(4)
aspect of his claim in Count One. See R&R at 16.
Due to these unresolved claims, the Magistrate Judge
recommended denying without prejudice plaintiff's request
for damages, costs and attorney's fees. Id., at
23. The Magistrate Judge further recommended that the
defendant's motion for summary judgment be denied.
plaintiff did not report as ordered concerning whether he
wishes to proceed with regard to the remaining basis for his
claim in Count One concerning the Validation Notice or Count
Three. Plaintiff submitted one objection to the Report and
Recommendation. Specifically, plaintiff objected to the
recommended denial of his §1692g(a)(4) claim in Count
72(b) (3)of the Federal Rules of Civil procedure requires the
court to review "de novo any part of the magistrate
judge's disposition that has been properly objected
to." "[A party is] not entitled to a de novo review
of an argument never raised " before the magistrate
judge. Borden v. Sec'y of Health & Human
Servs., 836 F.2d 4, 6 (1st Cir. 1987). "Parties
must take before the magistrate, 'not only their best
shot but all of their shots.'" Id. (quoting
Singh v. Superintending Sch. Comm. Of City of
Portland, 593 F.Supp. 1315, 1318 (D. Me. 1984). Waiver
of de novo review by failing to file proper objections does
not entitle a party to "some lesser standard" of
review. Thomas v. Arn, 474 U.S. 140, 149-50 (1985);
see also Costa v. Hall, 2010 WL 5018159, at *17 (D.
Mass. Dec. 2, 2010) ("Absent objections, the court may
adopt the report and recommendation of the magistrate
judge."). However, review by the court in such
circumstances is not prohibited, and some level of oversight,
even if not de novo, is encouraged. See Henderson v.
Carlson, 812 F.2d 874, 878 (3rd Cir. 1987).
court finds the Report and Recommendation to be thorough and
persuasive. It is, therefore, being incorporated in this
Memorandum and adopted. Accordingly, plaintiff's motion
for summary judgment is being allowed in part and denied in
part. In addition, plaintiff's request for statutory
damages, costs and attorney's fees is being allowed.
Defendant's motion for summary judgment is being denied.
motion for summary judgment on Count One is being allowed
with regard to the §1692g overshadowing claim, as to
which no objection has been made, and on Count Two. The
§1692g(a)(4) claim in Count One is being dismissed.
Plaintiff did not report that he wished to proceed to trial
on that claim. In any event, the §1692g(a)(4) claim is
moot because granting summary judgment on the §1692g
claim means that judgment will enter for plaintiff in Count
One. Cf. Lamb v. M&M Associates Inc., 1998 WL
34288694, at *6 (S.D. Ohio, 1998)(holding that an
overshadowing argument is moot when the court has concluded
as a matter of law that the requisite validation notices were
not included in collection letter).
Count Three, plaintiff alleges that defendant violated the
§1962f prohibition on "unfair or unconscionable
means to collect or attempt to collect [a] debt".
R&R at 21-23. As the Magistrate Judge explained,
plaintiff cannot recover under Count Three because he relies
on the same conduct used to establish his §1692 (e)
claim in Count Two. See id.
Magistrate Judge correctly concluded that §1962f
prohibits unfair and unconscionable conduct not covered by
any other section of the FDCPA. See id.; Davis
v. Diversified Consultants Inc., 36 F.Supp. 3rd 217, 228
(D. Mass. 2014); Fiorenzano v. LVNV Funding, LLC,
21012 WL 256425, at *5.). Because defendant did not raise
this argument in seeking summary judgment on Count Three, the
Magistrate Judge ordered that plaintiff advise the court
within 14 days of the Report and Recommendation as to whether
he wished to proceed with Count Three or voluntarily dismiss
it. Id., at 23. Plaintiff did not respond to that
order. Therefore, the court infers that plaintiff does not
wish to proceed on Count Three, which is unmeritorious, and
is deeming it withdrawn.
Magistrate Judge denied without prejudice plaintiff's
request for damages because Count Three remained pending. As
Count Three has been resolved, the issues of damages, costs,
and attorney's fees are now ripe for decision. See
McInnis-Misenor v. Maine Medical Center, 319 F.3d 63,
69(1st Cir., 2003).
1692k(a) allows a prevailing plaintiff to recover "the
costs of the action, together with a reasonable
attorney's fee as determined by the court. . . " as
well as statutory damages of up to $1, 000. Further,
"[a]n award of attorney's fees to successful
plaintiffs under the FDCPA is obligatory." French v.
Corporate Receivables Inc., 489 F.3d 402, 403 (1st Cir.
2007) (citing Zagorski v. Midwest Billing Serv.,
Inc., 128 F.3d 1164, 1166 (7th Cir. 1997); Emanuel v. Am.
Credit Exch., 870 F.2d 805, 809 (2d Cir.1989).).
"That successful plaintiffs are entitled to a fee award
under the FDCPA does not mean, however, that they are
entitled to the amount requested; they are entitled to what
is reasonable under the circumstances." French,
489 F.3d at 404 (citing Carroll v. Wolpoff &
Abramson, 53 F.3d 626, 629 (4th Cir. 1995); de Jesus
v. Banco Popular de Puerto Rico, 918 F.2d 232, 233-34
(1st Cir.1990)). To determine the reasonableness of
attorney's fees, courts utilize the "lodestar
method, " which calculates the number of hours
reasonably expended on the subject matter multiplied by a
reasonable hourly rate. See Hensley v. Eckerhart,
461 U.S. 424, 433-34 (1983); Perdue v. Kenny A., 130
S.Ct. 1662, 1672-73 (2010); Edge v. Norfolk Fin. Corp.
& Co., WL 2323193, at *2(D. Mass. 2005).
seeks $1, 000 in statutory damages, $59.95 in costs, and $10,
865.50 in attorney's fees. Plaintiff calculated
attorney's fees using the lodestar method and has
submitted documentation that establishes the reasonableness
of the request. See Pis' Mot. and Mem. Summ. J.,
Ex. E. Defendant in his submission to the Magistrate Judge
did not challenge the reasonableness of the amounts
requested. It is too late to do so now. See Borden,
836 F.2d at 6; Singh, 593 F.Supp. at 1318.