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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CYNTHIA GREEN

Plaintiff, Civil Action 14-14280

v. Honorable Denise Page Hood 

Magistrate Judge David R. Grand

NATIONWIDE ARBITRATION SERVICES,

LLC, et al,

Defendants.

__________________________________/

REPORT AND RECOMMENDATION TO GRANT IN PART

AND DENY IN PART PLAINTIFF’S EMERGENCY MOTION

FOR SUPPLEMENTAL FEES AND COSTS [102, 125]

I. RECOMMENDATION

Plaintiff Cynthia Green’s (“Green”) “Emergency Motion for Supplemental Fees and 

Costs” (Doc. #102) and “Supplement to Plaintiff’s Emergency Motion for Supplemental Fees 

and Costs” (Doc. #125) have been referred to the undersigned for a report and recommendation,

pursuant to 28 U.S.C. § 636(b)(1)(B). (Docs. #103, #127). In addition, Green filed a

“Supplemental Brief in Support of Plaintiff’s Requested Relief Regarding Matthew Marcucci’s 

and Nationwide Arbitration Services, LLC[‘s] Failure to Show Cause” (Doc. #126). In short, in 

these filings, Green requests that the Court (1) award her attorney’s fees and costs she incurred in 

connection with her counsel’s efforts to collect a prior judgment in this action, and (2) issue a 

writ of body attachment against defendant Matthew Marcucci (“Marcucci”), the President of 

defendant Nationwide Arbitration Services, LLC (“Nationwide”), and deem Marcucci’s and 

Nationwide’s assets as non-exempt in aid of judgment for violating this Court’s September 22, 

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2017 Order to Appear and Show Cause (Doc. #123) (the “Show Cause Order”). Neither 

Marcucci nor Nationwide has responded to these filings by Green.

For the reasons set forth below, IT IS RECOMMENDED that the two motions referred to 

this Court (Docs. #102, 125) be GRANTED IN PART AND DENIED IN PART.

II. REPORT

A. Background

Green filed her complaint in this action against a handful of defendants, including 

Nationwide and Marcucci, on November 6, 2014 alleging violations of the Fair Debt Collection 

Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., the Michigan Occupational Code, M.C.L. § 

339.915 et seq., or, in the alternative, the Michigan Collection Practices Act, M.C.L. § 445.252 

et seq. None of the named defendants timely appeared in the action, and, on November 30, 

2015, Green obtained a default judgment against them in the amount of $105,000, plus 

$12,355.00 in attorney’s fees, and $400.00 in costs. (Doc. #26). Green has since settled with 

two of the defendants that were subject to that judgment, Mark Gray (“Gray”) and Cooper 

Financial, LLC (“Cooper”) and those defendants have been dismissed from this action. (Docs.

#119, #120, #121). The Satisfaction of Judgment states that Gray and Cooper have “satisfied the 

judgment as to themselves.” (Doc. #119). It is therefore unclear to what extent the default 

judgment amount remains unsatisfied and still collectible against defendants Nationwide and 

Marcucci. Whatever that amount may be, Green has set out to collect it. Unfortunately, Green 

has not been successful. 

On September 22, 2017, the Court issued the Show Cause Order as to why Marcucci and 

Nationwide should not be held in contempt for failing to comply with the Court’s prior orders. 

(Doc. #123). On November 11, 2017, the Court held a hearing on that Order. Green appeared, 

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but Marcucci and Nationwide did not. Green has now petitioned the Court for supplemental fees 

and costs totaling $29,548.13 that she incurred in trying to collect the remaining judgment 

against Marcucci and Nationwide. (Doc. #125 at 4). At the Show Cause hearing, Green also 

requested the Court to issue further contempt sanctions against Marcucci and Nationwide. 

Specifically, she requested that the Court issue a writ of body attachment against Marcucci and 

declare his and Nationwide’s assets to be non-exempt from collection. Green filed a 

supplemental brief regarding these forms of requested relief. (Doc. #126). 

B. Supplemental Fees and Costs

The Court will grant Green an appropriate portion of the supplemental costs and 

attorney’s fees she requests. The FDCPA provides for a mandatory award of attorney’s fees to a 

prevailing consumer. Tolentino v. Friedman, 46 F.3d 645, 651 (7th Cir.), cert. denied, 515 U.S. 

1160 (1995); Piples v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 28 (2d Cir. 1989); Graziano 

v. Harrison, 950 F.2d 107, 113 (3rd Cir. 1991) (“[A]ttorney’s fees should not be construed as a 

special or discretionary remedy; rather, the Act mandates an award of attorney’s fees as a means 

of fulfilling Congress’s intent that the Act should be enforced by debtors acting as private 

attorneys general”). See also Dowling v. Litton Loan Servicing LP, 320 F. App'x 442, 447 (6th 

Cir. 2009) (upholding the award of attorney’s fees for an FDCPA violation); Lee v. Thomas & 

Thomas, 109 F.3d 305-307 (6th Cir. 1997) (discussing how much should be awarded in 

attorney’s fees under in an FDCPA case). 

In determining the amount of reasonable attorney’s fees, courts use the “lodestar”

approach. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also United States v. Metro. 

Health Corp., No. 02-485, 2005 WL 3434830, at *7 (W.D. Mich. Dec. 13, 2005) (applying the 

lodestar approach in determining the reasonableness of an attorney’s fee award in a civil 

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contempt case). In making the “lodestar” calculation, “[t]he most useful starting point . . . is the 

number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” 

Hensley, 461 U.S. at 433-34. “The party seeking an award of fees should submit evidence 

supporting the hours worked and rates claimed.” Id. The Sixth Circuit has held that the court 

must look first to the attorney’s ordinary rate to establish what is presumptively reasonable.

Wells v. New Cherokee Corp., 58 F.3d 233, 239 (6th Cir. 1995) (quoting Northcross v. Bd. of 

Educ., 611 F.2d 625, 638 (6th Cir. 1979)). Once the lodestar is calculated, the fee may be 

adjusted in consideration of a number of factors, including: (1) time and labor; (2) difficulty of 

the case; (3) skill necessary; (4) the extent the attorney is precluded from working on other 

matters; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations;

(8) the amount involved and results obtained; (9) the attorney’s experience, reputation, and 

ability; (10) the undesirability of the case; (11) the nature and length of the attorney-client 

relationship; and (12) awards in similar cases. Hensley, 461 U.S. at 430 n.3.

In total, Green asks for $29,548.13 in attorney’s fees and costs. (Doc. #125 at 4). In her 

first motion for fees and costs, filed on June 12, 2017, and covering the period up to June 8, 

2017, Green asked for $22,148.75 in attorney’s fees for 95.05 billable hours, totaling an average 

rate of $233.02 per hour (Docs. #102 at 1; #125 at 3). She also asked for $1,551.88 in nontaxable expenses. (Docs. #102 at 1; #125 at 3). In her supplement to the motion for fees, filed 

on November 11, 2017, Green updates her attorney’s fees to include the period of June 9, 2017 

to November 8, 2017, asking for an additional $5,847.50 for 20.10 hours that were expended 

after her initial motion was filed. (Doc. #125 at 1). 

The requested fees and costs are generally reasonable except that adjustments to the 

initial amounts requested – $22,148.75 in attorney’s fees and $1,551.88 in non-taxable expenses 

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– must be made to reflect the fact that these are the amounts Green was seeking before she 

settled with Gray and Cooper, and many of the amounts relate specifically to those two 

defendants. It is not appropriate to allocate those amounts against Marcucci and Nationwide. 

The non-taxable expenses are easiest to address because they are few in number and 

Green itemized them by defendant. (Docs. #102-6, #102-7). Of the $1,551.88, only $284

pertained to Marcucci and/or Nationwide. (Id.). An additional $303 appears evenly allocable 

between Gray and Marcucci. (Id.). All of the other charges pertained to Gray and Cooper. 

Thus, the initial request for non-taxable costs should be approved in the amount of $435.50

against Marcucci and Nationwide. 

The Court now turns to Green’s requests for fees. The rates and hours underlying the 

initial requested fee amount of $22,148.75 are reasonable1

, but as with the expenses, the amounts

attributable solely to Gray and Cooper – $8,325 – must be excised from the total. (Docs. #102-4, 

#102-5, #102-6) (see Attachment A hereto ). Additionally, it is appropriate to excise 50% of the 

attorney fees not allocable to any one group of defendants – $5,068.13.2 Thus, the total initial 

fees chargeable to Marcucci and Nationwide are $8,783.13 ($3,715.00 + $5,068.13).

In addition, Green seeks supplemental fees of $5,847.50. (Doc. #125). Again, the hours 

and rates are reasonable, but the initial three entries for which fees are sought – which total 

 

1 Green’s initial motion for fees included a reduction in billable hours of 46.05 hours (Doc. #102 

at 11). However, the amount requested contains hours attributable solely to Gray and Cooper, 

and it is improper to charge those to Marcucci and Nationwide. According to Green’s motion, 

her counsel has a highly specialized practice in state consumer protection statutes. (Doc. #102 at 

15). Green’s counsel’s fees range from $100-$125 per hour for a paralegal, $200-$250 per hour 

for an associate, and $450 per hour for a senior partner. (Doc. #102-22 at 1). These rates fall 

well within the median rates for consumer law attorneys in the Detroit area according to the 

2015-2016 U.S. Consumer Law Attorney Fee Survey Report. (Doc. #102-19 at 33). 

2 $22,148.75-($8,297.50 + $3,715.00) = $5,068.13. See Attachment A. 

2

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$2,160 – pertain equally to both groups of defendants. (Doc. #125-2). Thus 50% of that amount, 

or $1,080.00, must be excised from the total sought. This results in an award of supplemental 

fees of $4,767.50.

In sum, the Court should award costs of $435.50 and fees of $13,550.63 ($8,783.13 +

$4,767.50) against Marcucci and Nationwide. 

C. Other Relief Sought by Green

Marcucci has already been found in contempt. (Doc. #126 at 3, 11). Green now moves 

the Court to sanction Marcucci by issuing a writ of body attachment as well as declaring 

Marcucci and Nationwide’s assets as non-exempt in aid of judgment. (Id. at 20-21). The Court 

will address these requests in turn. 

In deciding whether to impose contempt sanctions, courts consider “the character and the 

magnitude of the harm threatened by any contumacy, as well as the probable effectiveness of any 

suggested sanction in bringing about the desired result.” U.S. v. United Mine Workers, 330 U.S. 

258, 304 (1947). Courts may issue a writ of body attachment after a party has failed to cure 

himself of his civil contempt. Williams v. Vandeviver, No. 11-CV-15667, 2013 WL 6062383, at 

*1 (E.D. Mich. Nov. 18, 2013); N.L.R.B. v. Sawulski, 158 B.R. 971 (E.D. Mich. 1993); Straight 

Creek Mining, Inc. v. N.L.R.B., No. 97-5677, 2001 WL 1262218, at *1 (6th Cir. May 11, 2001);

N.L.R.B. v. Kidd, No. 86-6042, 1991 WL 345312, at *1 (6th Cir. Sept. 12, 1991); N.L.R.B. v. 

Teamsters, Chauffeurs, Helpers & Taxicab Drivers, Local No. 327, 592 F.2d 921 (6th Cir. 

1979); N.L.R.B. v. S. E. Nichols of Ohio, Inc., 592 F.2d 396 (6th Cir. 1979); N.L.R.B. v. Rothkin,

No. 71-1221, 1975 WL 12053 (6th Cir. Sept. 9, 1975); N.L.R.B. v. Interurban Gas Corp., 401 

F.2d 745 (6th Cir. 1968).

Yet Marcucci’s situation is unique. He claims to have significant health issues and his 

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status as a homeless person is well-documented throughout the record. (Docs. #88 at 1; #99 at 1;

#108 at 3; #123 at 2). Green neither challenged Marcucci’s statements about these matters, nor 

showed them to be untrue. Nor has Green demonstrated that Marcucci has any assets 

whatsoever. Green does not address the practical ramifications of issuing a writ of body 

attachment for a party in Marcucci’s situation. 

Green does list several cases in which parties were found in contempt and issued writs of 

body attachment in response. (Doc. #126 at 6-10). But those cases differ from the case at hand 

in that, unlike Marcucci, the sanctioned party was easily located and had a home address. For 

example, Green cites to U.S. v. Hendrickson, No. 06-11753, 2010 WL 2318770 (E.D. Mich. 

April 16, 2010), in which the court issues a writ of body attachment. (Doc. #126 at 7). But in 

that case, the defendant had an income of approximately $60,000, and presumably a permanent 

address. Hendrickson, 2010 WL 2318770, at *1. In fact, in none of the cases Green cites did the 

court opt to sanction a party who was in a circumstance similar to that of Marcucci. (Doc. #126 

at 7-17). See, e.g., In re Yehud-Monosson USA, Inc., 472 B.R. 868, 873 (D. Minn. 2013)

(recounting the defendant’s fairly regular communication with the court); Edeh v. Carruther, No. 

10-2860, 2011 WL 4808194, at *1 (D. Minn. Sept. 20, 2011) (stating that the defendant was a 

lawyer with his own firm, which presumably had a permanent address associated with it). 

While it is true that Marcucci violated this Court’s Show Cause Order, at least on the 

record before it, a writ of body attachment is inappropriate at this time, and Green’s request for 

that relief should be denied. As noted above, the Court has awarded substantial fees and costs 

against Marcucci and Nationwide. Given the circumstances, including that about half the fees 

Green sought from Marcucci and Nationwide were ones attributable directly to other defendants 

with whom she settled, this is an adequate sanction. At any rate, it would not be prudent or an 

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efficient use of resources for the Court to enter a writ of body attachment as to Marcucci. 

Certainly, should Green be able to locate Marcucci and show that the circumstances are different 

than the present record suggests, she may renew her request at that time. 

Green also asks that the Court deem the assets of Marcucci and Nationwide as nonexempt in aid of judgment. (Doc. #126 at 21). According to Rule 37(b):

(A) For Not Obeying a Discovery Order. If a party or a party’s officer, 

director, or managing agent . . . fails to obey an order to provide or permit 

discovery, including an order under Rule 26(f), 35, or 37(a), the court where 

the action is pending may issue further just orders. They may include the 

following: 

(i) directing that the matters embraced in the order or other designated facts 

be taken as established for purposes of the action, as the prevailing party 

claims.

(ii) prohibiting the disobedient party from supporting or opposing designated 

claims or defenses, or from introducing designated matters in evidence . . . .

Fed. R. Civ. P. 37(b)(2)(A)(i-ii). Declaring Marcucci and Nationwide’s assets as nonexempt might be seen as designating a fact be taken as established under (i) or prohibiting 

Marcucci from opposing a designated claim under (ii). Accordingly, under (i) or (ii), if a

defendant fails to obey an order to provide or permit discovery, a court may declare that a 

defendant’s assets are non-exempt in aid of judgment.

Again, while it is true that Marcucci has been found in contempt and the Court perhaps 

could sanction him by declaring his assets as non-exempt in aid of judgment, such a sanction is 

not appropriate at this time. Green has not shown that Marcucci or Nationwide have any assets 

at all, let alone ones that might be appropriate for the requested designation. The Court is loath 

to declare unknown assets, which may or may not exist, or which may or may not be subject to 

others’ legal rights and interests, as non-exempt from collection. 

Accordingly, to the extent Green requests an order declaring the (unspecified) assets of 

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Marcucci and/or Nationwide to be non-exempt from execution, that request should be denied.

III. CONCLUSION

For the foregoing reasons, IT IS RECOMMENDED that Green’s “Emergency Motion 

for Supplemental Fees and Costs” (Doc. #102) and her “Supplement to Plaintiff’s Emergency 

Motion for Supplemental Fees and Costs” (Doc. #125) be GRANTED IN PART AND 

DENIED IN PART; Green should be awarded costs of $435.50 and fees of $13,550.63 against 

Marcucci and Nationwide. In all other respects her motions should be DENIED.

Dated: December 22, 2017 s/David R. Grand

Ann Arbor, Michigan DAVID R. GRAND

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as 

provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to file specific 

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 

(1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v. 

Walters, 638 F.2d 947, 949–50 (6th Cir. 1981). The filing of objections which raise some issues, 

but fail to raise others with specificity, will not preserve all the objections a party might have to 

this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.

1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 

Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this 

magistrate judge. A party may Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1). Any such response 

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should be concise, and should address specifically, and in the same order raised, each issue 

presented in the objections.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on December 22, 2017.

s/Eddrey O. Butts

EDDREY O. BUTTS

Case Manager

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