King v. Midland Credit Management, Inc. ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 10, 2013
Elisabeth A. Shumaker
Clerk of Court
SONYA KING,
Plaintiff-Appellant,
v. No. 13-1225
(D.C. No. 1:11-CV-02808-CMA-BNB)
MIDLAND CREDIT MANAGEMENT, (D. Colo.)
INC.,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.
This is an appeal from the district court’s order denying plaintiff Sonya King’s
supplemental motion for attorney’s fees as untimely. We have jurisdiction under
28 U.S.C. § 1291 and affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with Federal
Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
Background
Sonya King (“King”) filed suit against Midland Credit Management, Inc.
(“Midland”) under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692-1692p.
Shortly after suit was filed, Midland served an offer of judgment for $1,001 that King
accepted. The district court entered judgment against Midland for that amount, plus
King’s reasonable costs and attorney’s fees, on December 28, 2011.
The parties stipulated as to costs, but could not agree as to attorney’s fees. On
January 11, 2012, King filed a timely motion in which she requested $3,810 in fees
already incurred “plus . . . any additional amounts as determined by the Court.”
Aplt. App. at 50. Midland timely filed a response claiming the fee request was
unreasonably high. As part of her reply brief filed on February 16, King asked for an
additional $780 in fees for time spent reviewing Midland’s response and drafting and
filing her reply. See id. at 110.
The fee dispute was assigned to the magistrate judge, who recommended that
King’s motion be granted. Notably, however, the magistrate judge did not address
the reply request for the additional $780. Midland objected to the magistrate judge’s
recommendation and King filed a response thereto.
In an August 20, 2012 order, the district court determined that Midland’s
objections had merit and lowered the magistrate judge’s recommended fee award to
$2,500. Like the magistrate judge, the district court did not address the request for
attorney’s fees contained in King’s reply brief.
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On August 30, 2012, King filed a supplemental motion for an additional
$1,475 in fees. This request once again included time spent in drafting and filing her
reply,1 plus time spent on work performed after the magistrate judge had issued his
recommendation. She also requested an unknown amount for future fees including
those “expended by Plaintiff in reviewing the Defendant’s response to this Motion, if
any, and to Reply to the Defendant’s Response, if any.” Id. at 197. The court denied
the supplemental motion as untimely, and King now appeals that determination. She
also seeks fees for time spent on this appeal.
Discussion
“We review a district court’s decision on whether to award attorney fees for
abuse of discretion, but we review de novo the district court’s application of the legal
principles underlying that decision.” Scottsdale Ins. Co. v. Tolliver, 636 F.3d 1273,
1276 (10th Cir. 2011) (internal quotation marks omitted).
Federal Rule of Civil Procedure 54 informs our decision in this case. The rule
provides, among other things, that a request for attorney’s fees “must be made by
motion, . . . [and] [u]nless a statute or a court order provides otherwise, the motion
must[] be filed no later than 14 days after the entry of judgment.” Rule 54(d)(2)(A) &
(B)(i). Under the rule, motions for attorney’s fees must also “state the amount sought
or provide a fair estimate of it.” Rule 54(d)(2)(B)(iii).
1
King lowered her request for this work to $600 in order to reflect the court-
ordered hourly rate. King also deducted .1 hour for the actual filing of her reply.
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It is beyond dispute that King filed her supplemental motion for attorney’s fees
well past the 14-day deadline imposed by Rule 54(d). As stated, the district court
entered judgment in this case on December 28, 2011 and King did not file her
supplemental motion for attorney’s fees until August 30, 2012—approximately eight
months later. There was no statute or court order extending the time for filing.
Accordingly, King’s supplemental motion for attorney’s fees was untimely under the
rule, as found by the district court.
King advances several excuses for her late filling in arguing for reversal. First,
she argues that she “had no way of estimating what her future attorneys [sic] fees
would be in the case as of the date she filed her initial Motion for Attorneys [sic]
Fees.” Aplt. Opening Br. at 6. She lists several unknowns, including whether
Midland “would file a Response to the Motion, how detailed the Response would be
and/or how long it would take Plaintiff’s counsel to review the Response and the
caselaw [sic] cited therein, if any,” and prepare a reply. Id. She also speculates that
“[a]ny amount that [she] had listed in her Motion as an estimate of her future fees . . .
would be . . . attacked by the Defendant in its Response as not ‘fair’ or not a ‘fair
estimate.’” Id. at 7.
We reject this argument. Rule 54(d)(2)(B)(iii) requires only a “fair
estimate”— not a precise number. As the district court explained, “[p]arties are
clearly capable of foreseeing the need to defend fee motions . . . [and] [t]hey are
also often capable of estimating the expense of doing so especially where, as here,
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their attorneys have handled an extremely high number of remarkably similar cases.”
Aplt. App. at 244-45. Simply put, King did not face an insurmountable obstacle in
providing an estimate in her first motion. Moreover, even if certain work was
unforeseeable, King provides no authority for her position that a district court must
accept a late-filed motion for additional fees under such circumstances. We agree
with the district court and Midland that courts would “tumble down the rabbit hole”
if every fee request could be supplemented by ever-more fee requests. Id. at 245.
Next, King argues her supplemental motion was in fact timely for two reasons.
First, she claims her supplemental motion should relate back to her initial motion for
fees. She claims it was not a new motion, but merely, as titled, a “supplement” to her
first. Yet this argument obviously fails because King’s supplemental motion sought
fees for new work previously unmentioned.
Alternatively, King argues the clock did not begin to run under Rule 54(d)
until long after the district court’s entry of judgment. She relies on Bernback v.
Greco, Nos. 05-4642, 05-4643, 2007 WL 108293, at *2 (3d Cir. Jan, 16, 2007)
(unpublished), in which the court held that a motion for attorney’s fees filed more
than 14 days following entry of the underlying judgment was timely because the fees
were incurred in the successful opposition of post-judgment motions and an appeal.
There, the court found that “the relevant event for purposes of a motion for
supplemental fees is the entry of judgment that required the prevailing party to incur
the additional fees”—not necessarily the district court’s entry of judgment following
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resolution of the case on the merits. Id. Yet even if we were inclined to apply this
approach here, we would still find King’s supplemental motion untimely. In this
case, the only post-judgment event that required King to incur additional fees
(beyond those requested in her first motion) was Midland’s objection to the
magistrate judge’s recommendation. This is not a “judgment.”
Conclusion
For the foregoing reasons, we find no merit to King’s arguments on appeal.
The judgment of the district court is therefore affirmed.
We deny King’s request for attorney’s fees associated with her appeal.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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