Mraz v. I.C. Sys.

REPORT AND RECOMMENDATION

NICHOLAS P. MIZELL, UNITED STATES MAGISTRATE JUDGE

Before the Court are Plaintiff's Renewed Motion for Costs and Attorneys' Fees (Doc. 71), Plaintiff's Request for Judicial Notice (Doc. 82), and Plaintiff's Motion for Sanctions Pursuant to 28 U.S.C. § 1927 (Doc. 96). Having obtained a consent judgment in his favor and then successfully resisting multiple efforts to vacate that judgment, Plaintiff Victor Mraz requests an award of $116, 845.00 for fees and $1, 366.79 for costs. (Docs. 71, 91). With entitlement to fees uncontested, and with no objection to the requested amount for costs, Defendant I.C. Systems, Inc. (“ICS”) argues in response that the fee award should be limited to $22, 596.00. (Doc. 101).

For the reasons discussed below, the Court should deny Mraz's motions for judicial notice and for section 1927 sanctions, and it should award him $72, 651.50 for fees and $1, 366.79 for costs.

I. Factual and Procedural Overview

This Fair Debt Collection Practices Act (“FDCPA”) case arises from a single debt collection letter ICS sent to Mraz because a doctor mistakenly charged Mraz a $50 cancellation fee. (Doc. 1; Doc. 33, pp. 1-2).^[1] The letter contained a misstatement; Mraz disputed the validity of the debt; the creditor confirmed no balance was due; and ICS ceased all efforts to collect. Still, Mraz decided to sue, and ICS chose to aggressively litigate the matter. In fact, ICS went so far as to contend that it is not a debt collector. (Doc. 33, p. 4).^[2] But in the end, the Court summarily rejected ICS's only defense and found ICS liable on all counts. (Doc. 33).

Then, the parties notified the Court that Mraz accepted ICS's Rule 68 offer of judgment for $1, 001 in damages and a reasonable amount of fees and costs as determined by the Court. (Doc. 36). The Court entered judgment in favor of Mraz and reserved jurisdiction to determine the fee-and-cost award. (Docs. 38, 39). In response to Mraz's first motion for fees and costs (Doc. 41), a previous report and recommendation (Doc. 53) reasoned that the motion should be granted in part and denied in part. Both sides lodged objections (Docs. 54, 55). Before the Court ruled on the objections to the R&R, ICS filed a motion to dismiss for lack of subject matter jurisdiction. (Doc. 57). Consequently, the Court denied without prejudice Mraz's initial motion for fees and costs. (Doc. 59). And some months later, the Court denied ICS's post-judgment motion to dismiss. (Doc. 70).

Mraz renewed his motion for fees and costs (Doc. 71). But before responding to the motion, ICS filed a motion for reconsideration of the Court's order denying the motion to dismiss. (Doc. 86). The Court denied reconsideration (Doc. 89). With this Court's leave (Doc. 90), Mraz supplemented his motion for fees and costs to account for the additional expenses (Doc. 91).

II. Mraz's Request for Judicial Notice

Even though it is cited no less than eighteen times in the various papers filed in support of Mraz's renewed motion for fees and costs, and a copy is even attached as an exhibit to the renewed motion (Doc. 71-2), Mraz requests that the Court take judicial notice of its prior disposition of a fee-and-cost motion in another FDCPA case handled by his counsel; namely, Judge Mirando's R&R in Robinson v. Nat'l Cred. Sys., Inc., No. 2:17-cv-386-FtM-38CM, 2019 WL 468580 (M.D. Fla. Jan. 22, 2019), which-in the absence of any objection from the parties-was adopted as an order of the Court, 2019 WL 462979 (Feb. 6, 2019). At bottom, Mraz wants the Court to take judicial notice that two of his three attorneys obtained a fee award in Fort Myers that was based on an hourly rate of $425. (Doc. 82).

Pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of certain adjudicative facts. “[A]djudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case. They relate to the parties, their activities, their properties, their businesses.” Fed.R.Evid. 201 (1972 Advisory Committee Notes). In other words: “When a court or an agency finds facts concerning the immediate parties-who did what, where, when, how, and with what motive or intent-the court or agency is performing an adjudicative function, and the facts are conveniently called adjudicative facts.” Id.

But an adjudicative fact is, generally speaking, “a fact in issue or facts from which such fact may be inferred.” Grayson v. Warden, Comm'r, Alabama Doc, 869 F.3d 1204, 1224 n.48 (11th Cir. 2017) (citing 18 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 5103.3 (3d ed. 2016)). And there is no dispute that, in the absence of any objection, the Court found $425 to be a reasonable hourly rate for the work that attorneys David Fineman and Joseph LoTempio performed in Robinson. Thus, even if the rate upon which a fee award was granted in another case could constitute an adjudicative fact, the hourly rate utilized in Robinson is not in issue and taking judicial notice of it is entirely unnecessary.

Moreover, the reasonable hourly rate arrived at in Robinson was a legal conclusion, and the “decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.” Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (citing 18 J. Moore, et al., Moore's Federal Practice § 134.02[1] [d] (3d ed. 2011)); see also McCray v. Dietsch and Wright, P.A., No. 8:18-cv-731-T-02SPF, 2020 WL 6565078, *2 (M.D. Fla. Nov. 9, 2020) (“That any counsel in FDCPA [class action] cases have been awarded $450 per hour by courts in this district does not bind this Court in this case.”). Indeed, it would be inappropriate for a district court to rest its conclusion about a reasonable hourly rate on little more than a prior determination because a reasonable rate-even for the same attorney handling the same type of action in the same market-is a client-by-client and case-by-case determination. Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1300 (11th Cir. 1988) (“No two lawyers possess the same skills, and no lawyer always performs at the same level of skill.”). Worse yet, such limited reasoning could be all too circular. City of Burlington v. Dague, 505 U.S. 557, 564 (1992) (“Our decrees would follow the ‘market,' which in turn is based on our decrees.”); see also Dillard v. City of Greensboro, 213 F.3d 1347, 1355 (11th Cir. 2000) (“Prior awards are not direct evidence of market behavior.”).

It was enough to cite Robinson and discuss it in the renewed motion, and to even note that Robinson was not discussed in the prior report and recommendation issued in response to Mraz's initial fee-and-cost motion (more on that later), but it was overkill to cite Robinson nearly twenty times in support of the renewed motion, and all the more improper to supply copies of Judge Mirando's R&R and the order adopting it. Cf. M.D. Fla. R. 3.01(i) (providing that a notice of authority “must not include a copy of the authority unless the authority is not readily available”). Crassly emphasizing Robinson by going even further and requesting judicial notice has unreasonably multiplied this proceeding and thereby wasted the limited resources of the Court. The request for judicial notice should be denied.^[3]

III. Mraz's Request for Sanctions Under 28 U.S.C. § 1927

Coming on the heels of his inadvisable request for judicial notice, and so somewhat reminiscent of “the pot calling the kettle sooty, ” Mraz argues that defense counsel vexatiously multiplied this proceeding by filing the post-judgment motion to dismiss and the motion for reconsideration of the Court's refusal to dismiss. (Doc. 96).

Section 1927 provides: “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927. This statute imposes a “high standard” that requires the movant to make an objective showing that the other side acted in bad faith. Hyde v. Irish, 962 F.3d 1306, 1310 (11th Cir. 2020).

While evidence of subjective bad faith may be used as support, the objective showing is made by demonstrating the other side engaged in behavior that “grossly deviates from reasonable conduct.” Id. (citing Amlong & Amlong, P.A. v. Denny's, Inc., 500 F.3d 1230, 1239-1241 (11th Cir. 2007)). Such a deviation requires more than mere negligence; it usually means an attorney acted knowingly or even recklessly. Id.; Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003). Thus, an attorney acts in bad faith under section 1927 when he “knowingly or recklessly pursues a frivolous claim, ” or if he “argues a meritorious claim for the purpose of harassing an opponent.” Silva v. Pro Transp., Inc., 898 F.3d 1335, 1340 (11th Cir. 2018); Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1225 (11th Cir. 2017). Sanctions under section 1927 are “a strong medicine used sparingly”; they require “more than a lack of merit … or [else] they would be due in every case.” Caiazza v. Marceno, No. 2:18-cv-784-SPC-MRM, 2021 WL 1193166, *1 (M.D. Fla. Mar. 30, 2021) (Chappell, J.) (internal citations omitted).

Mraz sticks to the former theory-that ICS's attorneys acted in bad faith in pursuing the motion to dismiss and the motion for reconsideration. (Doc. 96, pp. 9-17). Both parties present starkly different stories to support their respective positions-another sign of how contentious this...