JURY: ARMSTRONG v. THE CADLE CO.: $2,750, PLUS

[David A. Szwak]

Slip Copy, 2006 WL 894914 (S.D.Fla.)

United States District Court,
S.D. Florida.
Steven ARMSTRONG, an individual, Plaintiff,
v.
THE CADLE COMPANY, an Ohio corporation, as general partner of Dan Joint Venture
III, L.P., an Ohio limited partnership Defendant.
No. 05-60359-CIV-COHN, 05-603590CIV-SNOW.
April 3, 2006.


ORDER DENYING DEFENDANT'S MOTION FOR ENLARGEMENT OF TIME

COHN, J.
*1 THIS CAUSE is before the Court upon Defendant The Cadle Company's Motion for Enlargement of Time [DEs 37, 38] ("Motion for Enlargement"). [FN1] The Court has carefully considered the Motion and Plaintiff's Response [DE 39] and is otherwise fully advised in the premises. [FN2]


FN1. Defendant filed identical versions of the same motion as DE 37 and DE 38. Only DE 38 contains the exhibits to Defendant's Motion for Enlargement. The Court will hereafter refer to the Motion as DE 38.



FN2. Defendant has not filed a reply and the deadline to file a reply has passed.



I. BACKGROUND
Plaintiff filed this action on March 10, 2005 alleging that Defendant violated 15 U.S.C. § 1692, et seq, the Fair Debt Collection Practices Act ("FDCPA") and Fla. Stat. § 559, the Florida Consumer Collection Practices Act ("FCCPA") while attempting to collect on a loan issued to Plaintiff. A trial was held on January 3-4.2006 and the jury returned a verdict in favor of Plaintiff for $2,750, which included statutory damages of $1,000 for violation of the FDCPA and $1,000 for violation of the FCCPA, and $750 in emotional distress damages. On January 4, 2006, this Court entered final judgment in favor of Plaintiff in the amount of $2,750 plus interest [DE 31]. Thereafter, Plaintiff filed a Motion for Attorney's Fees and Costs [DE 32] pursuant to 15 U.S.C. § 1692k(a)(3). Defendant did not file a response. On March 2, 2006, the Court awarded Plaintiff attorney's fees and costs in the amount of $26,012.57 plus interest [DEs 35, 36].
On March 7, 2006, Defendant filed the Instant Motion seeking an extension of time in which to file its Motion to Vacate Final Judgment Pursuant to Rule 60(b)(3), or in the Alternative, Motion for New Trial Pursuant to Rule 59(a) Based Upon Perjury of Plaintiff ("Motion to Vacate Final Judgment") (proposed Motion attached to DE 38 as Exh. A). Alternatively, Defendant requests an enlargement of time to file its Notice of Appeal.
In its Motion for Enlargement, Defendant alleges that on January 17, 2006, it attempted to timely file its Motion to Vacate Final Judgment via the Court's electronic filing system. (Mot. [DE 38], ¶ 4.) According to the affidavit of LaFawn Leek, legal secretary to Defendant's counsel, she made numerous unsuccessful attempts to electronically file the motion on January 17, 2006. (Mot. [DE 38], Ex. A. ¶ 4.) Ms. Leek states that following the filing problems, she contacted the Clerk's Office of this Court and was told to try filing the document later that day because the system was experiencing difficulties. (Id., ¶ 5.) As instructed, Ms. Leek attempted to file the document later on January 17, 2006 and assumed that it was properly filed when she did not incur the same problems as she had earlier in the day. (Id., ¶ 6.) The Motion to Vacate Final Judgment was actually never received by the Court. Defendant states that its counsel only recently became aware that the Motion to Vacate Final Judgment was not properly filed. (Mot. [DE 38], ¶ 5.) Until such time, Defendant believed that the motion had been received by the Court, and therefore, the time for filing a notice of appeal had been tolled. Defendant alleges that based on the foregoing facts, it has established "excusable neglect" as required by Fed. R.App. P. 4(a)(5) to extend time for filing a notice of appeal.
*2 Plaintiff argues that Defendant's Motion for Enlargement should be denied because Fed.R.Civ.P. 6 does not permit the Court to extend the deadline for filing a Rule 59 motion. Additionally, Plaintiff argues that Defendant has failed to sufficiently demonstrate "excusable neglect" to allow for the extension of time to file the notice of appeal. Plaintiff supports his contention by noting that although Defendant's Motion to Vacate Final Judgment contains a certificate of service. Plaintiff never received a served copy of the motion. (Resp. [DE 39], at 7-8.) Further, Plaintiff notes that Defendant did not provide support, such as a confirmation e-mail, for its contention that the electronic filing was successful. (Id., at 10.) Plaintiff seeks attorneys fees and costs associated with the instant Motion for Enlargement pursuant to 15 U.S.C. § 1692k(a)(3). (Id., at 12.)

II. ANALYSIS
A. Extension of Time to File Motion to Vacate Final Judgment or for New Trial
The first issue before this Court is whether Defendant can now file its Motion to Vacate Final Judgment Pursuant to Rule 60(b)(3), or in the Alternative, Motion for New Trial Pursuant to Rule 59(a) Based Upon Perjury of Plaintiff. Fed.R.Civ.P. 59(b) provides that "[a]ny motion for a new trial shall be filed no later than 10 days after entry of the judgment." Pursuant to Fed.R.Civ.P. 6(b), the time limitation contained in Rule 59(b) cannot be extended. However, Fed.R.Civ.P. 60(b) allows for relief from judgment within a reasonable time. In most cases, a "reasonable time" is defined as not more than one year after judgment was entered. See Fed.R.Civ.P. 60(b).
As correctly stated by Defendant, the time to file a motion for relief from judgment pursuant to Rule 60(b) has not expired. However, the time for filing a motion for a new trial under Rule 59(b) has expired, and pursuant to Rule 6(b), the Court cannot grant Defendant an extension of time to file such a motion. As such, Defendant's request for an extension of time in which to file its motion for a new trial will be denied. [FN3]


FN3. Defendant attached its Motion to Vacate Final Judgment Pursuant to Rule 60(b)(3) or, in the Alternative, Motion for New Trial Pursuant to Rule 59(a) Based Upon Perjury of Plaintiff that it alleges it attempted to file on January 17, 2006 as Exhibit A to its Motion for Enlargement [DE 38]. The Court will not consider this Motion to Vacate
Final Judgment on its merits. Should Defendant wish to file a motion in accordance with this Order and pursuant to Rule 60, it must file such motion with the Court under separate cover.



B. Extension of Time to File Notice of Appeal
Second, the Court must decide whether Defendant has established a basis for this Court to grant an extension of time in which to file a notice of appeal. Fed. R.App. P. 4 provides a party to a civil action 30 days from the date of final judgment to appeal. The time to file an appeal is tolled by the timely filing of a Rule 59 motion or the filing of a Rule 60 motion within 10 days from the entry of judgment. Fed. R.App. P. 4(a)(4)(A). Motions filed in accordance with Rule 60, but more than 10 days after the entry of judgment do not toll the time to file a notice of appeal. Id.
Fed. R.App. P. 4(a)(5) provides that the district court can, upon a showing of excusable neglect or good cause, extend the time to file a notice of appeal. In this case, the parties dispute whether Defendant has made a showing of excusable neglect. The Eleventh Circuit has held that whether a party has established "excusable neglect" in the context of a motion for an extension of time to file a notice of appeal, is to be determined by evaluating " 'the danger of prejudice to the nonmovant, the length of delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." ' Advanced Estimating Sys. v. Riney, 130 F.3d 996, 997-98 (11th Cir.1997) (quoting Pioneer Inv. Servs. v. Brunswick Assocs. Ltd, P'ship, 507 U.S. 380, 395 (1993) (defining excusable neglect in the context of bankruptcy)).
*3 In Cannabis Action Network, Inc. v. Gainesville, the Eleventh Circuit, applying the Pioneer four-part test, found that the plaintiff established excusable neglect and affirmed the district court's grant of an extension of time to file a notice of appeal. 231 F.3d 761 (11th Cir.2000) (judgment vacated on other grounds). The district court granted plaintiff's motion for extension noting that the history of the proceedings were "convoluted." Id. at 765. Upon the court's initial entry of final judgment in favor of the defendant, the plaintiff filed a notice of appeal. Id. However, this notice became moot when the defendant filed a motion for clarification of the order of final judgment. Id. Thereafter, the court reissued final judgment but reserved ruling to consider additional relief. Id. at 765, 767. Because the court reserved ruling on certain issues, the plaintiff did not believe that this second order constituted final judgment and therefore failed to refile its notice of appeal. Id. at 767. Additionally, the clerk's office failed to properly enter the amended final judgment, so the parties were initially unaware it was issued. Id. at 767-68.
The Eleventh Circuit applied the four-part Pioneer test. First, the court found that there was no danger of prejudice to the defendants because they were going to be defending against a similar appeal timely filed by another plaintiff in the same matter. Id. at 767. Second, the court found that the delay was de minimus in light of the many years the parties had been litigating. Id. Third, the court stated that the reason for the delay was legitimate because the issuance of final judgment was confusing and the clerk's error was out of the plaintiff's control. Id. Finally, the court held that there was "no indication that [the plaintiff's] delay resulted from mere negligence or bad faith." Id. at 768. This was a legitimate mistake of fact, not merely a situation where the attorney misunderstood the rules of law. Id.
In this case, the Court finds that Defendant has not established excusable neglect. Although, as in Cannabis, this was a mistake of fact, not a mistake of law, the facts in this case do not rise to the level of excusable neglect found in Cannabis. Applying the Pioneer test, the Court does not believe that permitting Defendant an extension to file a notice of appeal would greatly prejudice Plaintiff. Additionally, the delay, although significant in light of the short duration of these proceedings, [FN4] would not greatly impact the judicial proceedings.


FN4. This case was filed on March 10, 2005 and final judgment was entered on January 4, 2006.


However, in this case, unlike in Cannabis, the delay was entirely within Defendant's control. Defendant claims that it attempted to electronically file its motion. Merely assuming that the attempt succeeded, especially after admittedly incurring problems with the system earlier in the day, is not sufficient to establish excusable neglect. This District's Chief Judge William J. Zloch's Administrative Order No.2002-36 In Re: Electronic Filing, notes that "[a]ny delay in filing caused by erroneous user data entry will be attributed to the user and will not toll the established time period for the filing of any document, pleading, or motion, nor constitute cause to excuse the late filing thereof." Adm. Order 2002-36, ¶ D.3. As stated by Plaintiff. Defendant fails to support its claim that the improper filing of the motion was caused by anything other than Defendant's error. Defendant has not provided the Court with a copy of a confirmation e-mail or any other basis for its belief that the document was received by the Court. Additionally, even after receipt of Plaintiff's Response [DE 39] to the Motion for Enlargement stating that he never received a copy of the Motion to Vacate Final Judgment, Defendant failed to provide evidence that the motion was actually sent to Plaintiff. Defendant's only proof of filing is a letter allegedly sent by defense counsel to Defendant's representative informing them that the motion had been filed. This, by itself, is not sufficient to establish excusable neglect, especially after Defendant was put on notice that there was a problem with the electronic filing system.
*4 Defendant had the ability and responsibility to check the docket. Unlike Cannabis, this was not a situation where the clerk's office failed to enter an order issued by the Court. This was a Motion allegedly filed by Defendant. Therefore, Defendant had notice that it should appear on the docket. Defendant did not attempt to check with the Court to ensure that the Motion to Vacate Final Judgment had been filed. Similarly, Defendant failed to check the docket when he did not receive a response from Plaintiff to the Motion to Vacate Final Judgment. Plaintiff's failure to respond to the Motion to Vacate Final Judgment provided Defendant additional notice of a potential problem. If Defendant had checked the docket any time after January 17, 2006, he would have discovered the filing error. However, defense counsel admits that it was not until almost six weeks later that he discovered the error. Checking the docket was entirely within Defendant's reasonable control. Failure to do so does not constitute excusable neglect. [FN5]


FN5. While The Cadle Company may have been harmed by its counsel's inability to meet deadlines in this case, the Eleventh Circuit has noted
that clients voluntarily choose their attorneys and are to be held accountable for the acts or omissions of their chosen attorneys. Young v. Palm Beach, 358 F.3d 859, 864 (11th Cir.2004) (citing Pioneer, 507 U.S. at 386-97).



C. Attorney's Fees
In his Response [DE 39], Plaintiff seeks attorneys fees and costs associated with the instant Motion for Enlargement pursuant to 15 U.S.C. § 1692k(a)(3). Defendant did not file a reply, or otherwise respond to Plaintiff's request for attorney's fees, and the time to file a reply has passed. Section 1692k(a)(3) states in relevant part, "n the case of any successful action to enforce the foregoing liability, [plaintiff may recover] the costs of the action, together with a reasonable attorney's fee as determined by the court." Plaintiff was successful in proving that Defendant violated the FDCPA. Therefore, Plaintiff is entitled to an award of reasonable attorneys fees.
In the Court's March 2, 2006 Order Granting Attorney's Fees, the Court determined that $275.00 was a reasonable hourly rate for the work of Plaintiff's counsel in this case [DE 35]. In the Court's experience, two hours is a reasonable amount of time to spend responding to the Motion for Extension, Therefore, rather than cause the parties to incur additional fees litigating the amount of fees to be awarded for time spent responding to the Motion for Enlargement, the Court will award Plaintiff $550.00, which corresponds to 2 hours of work at $275.00 per hour.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendant The Cadle Company's Motion for Enlargement of Time [DEs 37, 38] is DENIED.
2. Plaintiff Steven Armstrong shall recover $550.00 in attorney's fees for time spent responding to Defendant's Motion for Enlargement of Time.
DONE AND ORDERED.
S.D.Fla.,2006.
Armstrong v. The Cadle Co.
Slip Copy, 2006 WL 894914 (S.D.Fla.)

[David A. Szwak]

Slip Copy, 2006 WL 540330 (S.D.Fla.)


United States District Court,
S.D. Florida.
Steven ARMSTRONG, an individual, Plaintiff,
v.
THE CADLE COMPANY, an Ohio corporation, as general partner of DAN Joint Venture
III, L.P., an Ohio limited partnership Defendants.
No. 05-60359-CIV-COHN, 05-60359-CIV-SNOW.
March 2, 2006.

ORDER GRANTING MOTION FOR AWARD OF ATTORNEY'S FEES

COHN, J.
*1 THIS CAUSE is before the Court upon Plaintiff's Motion for Award of Attorney's Fees and Costs [DE 32]. Defendant did not file a response. The Court has carefully reviewed the Motion and supporting documents [DEs 33, 34], and is otherwise fully advised in the premises.

I. BACKGROUND
On March 10, 2005, Plaintiff filed this action alleging that Defendant violated 15 U.S.C. § 1692, et seq, the Fair Debt Collection Practices Act ("FDCPA") and Fla. Stat. § 559, the Florida Consumer Collection Practices Act ("FCCPA"). A jury returned a verdict in favor of Plaintiff, finding that Defendant violated both the FDCPA and the FCCPA. This Court subsequently entered Final Judgment in favor of Plaintiff in the amount of $2,750.00. Pursuant to 15 U.S.C. § 1692k(a)(3), Plaintiff now seeks an award of reasonable attorney's fees and costs.

II. ANALYSIS
"The so-called 'American Rule' governing the award of attorneys' fees in litigation in the federal court is that attorneys' fees 'are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor." ' F.D. Rich Co., Inc. v. United States, 417 U.S. 116, 126, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974) (quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967)). In this case, Plaintiff is seeking attorney's fees pursuant to 15 U.S.C. § 1692k(a)(3) which states in relevant part, "n the case of any successful action to enforce the foregoing liability, [plaintiff may recover] the costs of the action. together with a reasonable attorney's fee as determined by the court." Plaintiff was successful in proving that Defendant violated the FDCPA. Therefore, Plaintiff is entitled to an award of reasonable attorneys fees.
Local Rule 7.3 provides in relevant part:
Any motion for attorneys fees: must specify the judgment and the statute, rule, or other grounds entitling the moving party to the award; must state the amount or provide a fair estimate of the amount sought; shall disclose the terms of any agreement with respect to fees to be paid for the services for which the claim is made; shall be supported with a detailed description of hours reasonably expended, the hourly rate and its basis, and a detailed description of all reimbursable expenses; shall be verified; and, along with an affidavit of an expert witness, shall be filed and served within 30 days of entry of Final Judgment or other appealable order that gives rise to a right to attorneys fees. Any such motion shall be accompanied by a certification that counsel has fully reviewed the time records and supporting data and that the motion is well grounded in fact and justified.... Prior to filing a motion for attorney's fees or bill to tax costs, counsel shall confer with opposing counsel and make a certified statement in the motion or bill in accordance with Local Rule 7.1.A.3.
Local Rule 7.3.
Pursuant to Local Rule 7.3, Plaintiffs' counsel certified the following: (1) Plaintiff's claim for attorney's fees is based on 15 U.S.C. § 1692k(a)(3); (2) Using the lodestar formula, Plaintiff seeks $24,000.00 in attorney's fees for 87.80 hours of work, as set forth with particularity; (3) Attorney Donald A. Yarbrough, serving as an expert witness, fully reviewed the time records and supporting data, and through affidavit, states that 87 hours is a reasonable time to expend on this type of litigation and that $275.00 is a reasonable hourly rate; (4) Plaintiff's counsel, attorney Robert W. Murphy, fully reviewed the time records and supporting data, and through affidavit, states that Plaintiff's motion is well grounded in fact and justified; (5) Counsel for Plaintiff and Defendants were unable to resolve the issues relating to Plaintiff's Motion. The Motion fails to certify the type of agreement between Plaintiff's counsel and Plaintiff regarding the payment of fees. However, a review of the hourly time records shows that Plaintiff was not billed for any fees, and the Court can therefore conclude that there was a contingency fee agreement. Based on the foregoing, the Court finds that Plaintiff has sufficiently complied with Local Rule 7.3.
*2 Plaintiff seeks an hourly fee of $275.00 for work by counsel. The records submitted by Plaintiff indicate that all work for Plaintiff was completed by Robert W. Murphy, Esq. The Court finds that this hourly rate is reasonable.
Plaintiff has submitted detailed billing records showing that Robert W. Murphy worked for a total of 80.87 hours, which corresponds to $24,145.00 in fees. Plaintiff is seeking $24,000.00 in fees. Plaintiff's itemized fee statement includes 15.20 hours in trial, 20.00 hours for travel to and attending depositions of Defendant's corporate designees in Warren, Ohio, and 52.80 hours on other litigation related matters such as research, drafting pleadings, and communications with client. After conducting an independent review of Mr. Murphy's entries, the Court concludes that the time billed is reasonable. Defendant has not provided the Court with any argument to the contrary.
Plaintiff also requests an award of $2,012.57 in costs and litigation expenses. Plaintiff supports this request with a sworn affidavit and a detailed and itemized list of the expenses. The Court finds the expenses reasonable and Defendant has provided no argument to the contrary.

III. CONCLUSION
Based on the foregoing. It Is ORDERED AND ADJUDGED as follows:
1. Plaintiff's Motion for Award of Attorney's Fees and Costs [DE 32] is hereby GRANTED.
2. Plaintiff Steven Armstrong shall recover $26,012.57 plus interest thereon at the rate of 4.72% per annum from the date of the Final Judgment Taxing Fees and Costs.
3. Final judgment will be entered in a separate order.
DONE AND ORDERED.
S.D.Fla.,2006.
Armstrong v. The Cadle Co.
Slip Copy, 2006 WL 540330 (S.D.Fla.)