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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ROBERT LEVANDER Case No. 2:08-cv-14241 

 

Plaintiff, Hon: David M. Lawson 

-vsI.C. SYSTEM, INC., and 

JOHN DOE, 

Defendants. 

REPLY TO DEFENDANT’S RESPONSE TO PLAINTIFF’S APPLICATION FOR 

ATTORNEY FEES

 It appears that the court’s inquiry is, "what is a reasonable attorney fee for a statutory 

$1000.00 recovery?" The short answer is: a fee based upon a reasonable hourly rate multiplied 

by the time spent by Plaintiff's law firm (which this Court finds reasonably expended) from the 

date Plaintiff filed his complaint until May 26, 2009, when Defendant submitted its second Offer 

of Judgment. 

 The liability proofs for establishing a statutory violation are exactly the same as with 

establishing an actual damage claim. Plaintiff intended to present only the liability facts along 

with Plaintiff's own testimony of his aggravation to the trier of fact as the basis for a jury 

determination on whether actual damages were warranted in this case. No additional proofs were 

necessary. 

 Defendant argues that Plaintiff's time spent prosecuting and proving up this FDCPA case 

was "economic waste” in light of the limited recovery of $1000.00. However, Plaintiff's focus 

was spent entirely on establishing the liability required to prove the statutory violations of 15 

USC 1692d, "conduct the natural consequence of which is to harass, oppress, or abuse any 

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person" and 15 USC 1692d (5), that Defendant "caused the phone to ring ... repeatedly. 

Damages could be inferred from the liability proofs without expert testimony. 

 The vast majority of cases are statutory. Defendant does not argue that Plaintiff is not 

entitled to statutory damages of $1000.00. However, Defendant failed to make an offer of 

judgment which compensated Plaintiff for his statutory damages, $1000.00 exclusive of attorney 

fees until a few weeks prior to the trial date. Since it is Defendant who solely has the mechanism 

of using the offer of judgment to limit the attorney fees at any time during the litigation, 

Defendant cannot now argue that Plaintiff forced Defendant "to litigate." The Defendant was 

fully aware it had caused Plaintiff's phones to ring incessantly for a three-week period and it 

deliberately programmed its automatic dialer to do so. (See Exhibit A - Sue Johnson's testimony 

on the Defendant's strategy behind the automatic dialer). 

 The bottom line is that Defendant never conceded that this case was even a statutory 

violation case until several weeks before trial when it submitted its second offer of judgment. 

Had the Defendant truly wanted to limit its damages and economic exposure, it would have filed 

an effective offer of judgment at the beginning of this case thereby limiting the ever mounting 

legal fees for the Plaintiff, which it directly caused to increase. 

 The Rivera Court held that in determining reasonable attorney fees after a jury awarded 

the consumer $1000.00 statutory damages, that the consumer’s rejection of the defendant’s pretrial offer of judgment in the total amount of $4000.00 was reasonable, because the consumer’s 

reasonable attorney fees at the time of the offer were more than $3000.00. The court made the 

insightful comment that this case helps illustrate: “A defendant who discovers a technical 

violation of the FDCPA should consider the economics of an immediate filing of an offer of 

judgment ‘up to $1000.00 statutory damages plus reasonable fees to be decided by the court.’ 

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Courts are capable of exercising sound discretion in determining how much statutory damages 

are appropriate, and what hourly rate is reasonable in the locality among the lawyers of 

comparable skill and experience. Leaving the amount of the attorney fees to the discretion of the 

court avoids the pitfall of offering acceptable damages but fees that are unreasonably low, 

though only barely so.” 

The Defendant in this case, at its own peril, made an ineffective first offer of judgment in 

a solid statutory violation case by not offering reasonable attorney fees to be determined by the 

court. Had this been done, the Defendants would have been in a better position to argue to cap 

attorney fees when the court ultimately found the Plaintiff not entitled to actual damages. 

Defendant testified it knew of the Plaintiff's bankruptcy and logged this fact into their system. 

Nevertheless, Defendant waited five months to bring its motion for immediate consideration to 

limit damages. In the meantime, Defendant’s dilatory tactics in refusing to provide answers and 

documents responsive to Plaintiff’s discovery requests as well as refusing to produce its 30(b)(6) 

witness, produced much unnecessary litigation and time expended. 

Motions and briefs - although not always decided in Plaintiff's favor, these served a dual 

purpose in educating the court on various issues including - Defendant's initial denials of wrong 

doing despite its own records to the contrary, the ineffectiveness of Defendant's first offer of 

judgment, the Plaintiff's counsel being listed as a witness to be called at trial, the irrelevancy of 

the Plaintiff's bankruptcy, etc. This education process should still be compensable as though it 

were a memorandum submitted on issues to be presented at trial. The only difference was that 

the court received it in advance of trial, benefiting both the court and Defendant in giving both 

additional time to research the issues. 

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Duplication - Plaintiff's preliminary research and drafting of pleadings was done at a lower 

hourly rate and was only reviewed and refined by the attorney. This was more cost effective. 

Many items Defendant claimed as redundant were not redundant and required further and 

different research, analysis and drafting. 

Hourly rate - FDCPA practice is narrow and no state has a huge quantity of consumer attorneys. 

Plaintiff's counsel is one of the only attorneys practicing FDCPA in the areas of Genesee, Lapeer 

and counties north of these counties. While it is true, that Plaintiff's counsel has only begun to 

specialize in FDCPA during the last three years, he has handled numerous Michigan Consumer 

Protection cases in state court over the past 12 years. Moreover, he has expended considerable 

time and resources educating himself in this area as opposed to the trial and error method by 

which many attorneys gain experience. This Court has sufficient pleadings and work product of 

the Plaintiff's law firm to determine a fair and reasonable hourly rate. 

Number of hours – Plaintiff's counsel did his best to accurately document actual hours 

expended and did so in most instances, contemporaneously with the task. This case was litigated 

until a few weeks before the trial date including the filing of motions in limine and working on 

the final pre-trial order. 

No charge items - Plaintiff's records are specific and not vague. There is much more than the 30 

hours documented which were designated "no charge" time entries. There was also no postage 

and photocopy charges. 

 Although Plaintiff concedes that the time expended after the offer of judgment was filed 

(including the 20 plus hours preparing the fee application, preparing and attending the hearing 

and preparing the reply) may not be compensable, there is no authority to preclude the court 

from considering this actual time spent finalizing the case when analyzing Defendant's 

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arguments to reduce the fee award overall. If the court follows the Defendant's rationale the 

Plaintiff's hourly attorney fees will be less than $25.00 per hour. 

 Defendant argues many specific time entries should not be compensated and totals up 

these dollar amounts to be reduced using $300.00 per hour rate which it vigorously argues should 

not be more $200.00. Any consideration should be re-adjusted in light of the Court's 

determination of Plaintiff's counsel's hourly rate. 

 Plaintiff has requested the award of costs and litigation expenses in addition to an award 

of attorney fees. The District of Nevada stated that ‘‘plaintiffs are also entitled to an award 

of costs representing out-of-pocket litigation expenses . . . includ[ing] costs incurred in 

travel (airfare, car rental, hotels and food, gasoline and the like), telephone, postage and 

photocopying.’’ Ilick v. Miller, 68 F. Supp. 2d 1169, 1181 (D. Nev. 1999). The FDCPA grants 

the successful plaintiff ‘‘the costs of the action.’’ 15 U.S.C. §1692k(a)(3). Long distance 

telephone and faxing expenses, as well as copying and postage have been awarded as costs. 

Sousa v. Miguel 32 F.3d 1370, 1374 (9th Cir. 1994). Recoverable costs include travel, 

photocopies, lodging, postage, telephone calls, and computerized research. Libertad v.

Sanchez, 134 F.Supp.2d 218, 236 (D.P.R. 2001). Costs may be recovered as provided for by 

statute as well as 28 U.S.C. § 1920. See: Lathem v. Department of Children & Youth Servs., 172 

F.3d 786, 794 (11th Cir. 1999). Thus, the Plaintiff’s litigation expenses and costs are 

compensable. 

June 25, 2009 /s/ Rex C. Anderson__________ 

Rex C. Anderson (P47068) 

9459 Lapeer Rd 

Davison, MI 48423 

Tel. (810) 653 3300 

Fax. (810) 658 2510 

Eml. rex@rexandersonpc.com

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CERTIFICATE OF SERVICE 

 I certify that on June 25, 2009, the foregoing papers were electronically filed with the 

Clerk of the Court using the Court’s electronic filing system which will send notification of such 

filing to the following: 

Daniel J. Ammon Gregory R. Neidle Brian P. Parker

30150 Telegraph Rd. 30150 Telegraph Rd. 30700 Telegraph Rd. 

Suite 410 Suite 410 Suite 1580 

Bingham Farms, MI 48025 Bingham Farms, MI 48025 Bingham Farms, MI 48025 

 __/s/ Rex C. Anderson__________ 

 Rex C. Anderson, Esq. (P47068) 

 Attorney for Plaintiff 

 9459 Lapeer Rd, Suite 101 

 Davison MI 48423 

 Telephone: (810) 653-3300 

 rex@rexandersonpc.com

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