United States District Court, W.D. Pennsylvania
T. Kimmel, Esq., Joseph C. Hoeffel, Esq., Katherine L.
Pomerleau, Esq. Robert J. Hannen, Esq.
Stewart Cercone United States District Judge
matter is before the Court on a motion for attorney fees and
costs (ECF No. 16) pursuant to Fed.R.Civ.P. 54(d) and 15
U.S.C. § 1692k(a)(3) filed by Defendant Account Services
Collectives, Inc. ("ASC"). For the reasons set
forth below, the motion will be denied.
an action under the Fair Debt Collections Practices Act
("FDCPA"), 15 U.S.C. § 1692, et seq.,
and the Telephone Consumer Protection Act ("TCPA"),
47 U.S.C. § 227 et seq. Plaintiff Mike Smalley
filed suit on November 13, 2015, alleging that ASC contacted
him on his cell phone, using an automatic telephone dialing
system, automated messages, and/or a prerecorded voice, in an
effort to collect a debt, in violation of the FDCPA and TCP
A. (ECF No. 1). ASC filed an answer denying Plaintiffs
allegations on April 4, 2016. (ECF No. 5). The court held an
initial case management conference on May 18, 2016. (ECF No.
2, 2016, the parties filed a joint stipulation of dismissal
pursuant to Fed.R.Civ.P. 41(a)(1)(A)(ii), whereby they
stipulated to dismiss the complaint with prejudice. (ECF No.
14). On June 8, 2016, the court entered an order confirming
the stipulation. (ECF No. 15).
ASC filed its motion for attorney fees and costs along with a
brief and numerous exhibits in support. (ECF Nos. 16, 17).
Plaintiff filed a response and brief in opposition (ECF Nos.
19, 20), and ASC, with leave of court, filed a reply (ECF No.
23). The matter is ripe for review.
Civ. P. 54(d)(1) gives the court discretion to award costs,
other than attorney's fees, to the “prevailing
party.” Furthermore, Fed.R.Civ.P. 54(d)(2) gives the
court discretion to award attorney's fees if authorized
by statute, rule, or otherwise. The FDCPA provides:
“[o]n a finding by the court that an action under this
section was brought in bad faith and for the purpose of
harassment, the court may award to the defendant
attorney's fees reasonable in relation to the work
expended and costs.” 15 U.S.C. § 1692k(a)(3).
Although not specifically stated in the statute, “most
courts appear to award attorney's fees under 15 U.S.C.
§ 1692k(a)(3) for a plaintiff's bad faith and
harassment only to what can be considered a prevailing
defendant.” Scroggin v. Credit Bureau of Jonesboro,
Inc., 973 F.Supp.2d 961, 980 (E.D. Ark. 2013) (citing
Montgomery v. Sessoms & Rogers, P.A., No.
5:12-cv-474-BO, 2013 WL 593949, *1 (E.D. N.C. Feb. 15,
threshold matter, the Court must determine whether ASC is a
“prevailing party.” A “prevailing
party” is someone “who has been awarded some
relief by the court.” Buckhannon Bd. & Care
Home, Inc. v. W. Virginia Dep't of Health & Human
Res., 532 U.S. 598, 603 (2001). There must have been a
“material alteration of the legal relationship of the
parties[, ]'” id. (quoting Texas State
Teachers Assn. v. Garland Indep. Sch. Dist., 489 U.S.
782, 792-93 (1989)), or a “judicially sanctioned change
in the legal relationship of the parties, ”
id. In defining “prevailing party” in
this manner, the Supreme Court has stressed the need for
“judicial imprimatur” and
“judicial relief.” Id. at 605-06
(emphasis in original). Thus, the Court explained in
Buckhannon, “enforceable judgments on the
merits and court-ordered consent decrees” are
sufficient to confer “prevailing-party” status.
Id. at 604. By contrast, “[a] defendant's
voluntary change in conduct, although perhaps accomplishing
what the plaintiff sought to achieve by lawsuit, ” is
not enough. Id. at 605. Likewise, “[p]rivate
settlements do not entail the judicial approval and oversight
involved in consent decrees” and are thus not
sufficient. Id. at 604 n.7.
parties dispute whether ASC became the “prevailing
party” by virtue of the filing of the stipulation of
dismissal with prejudice pursuant to Fed.R.Civ.P.
41(a)(1)(A)(ii). Under Rule 41(a)(1)(A)(ii), “the
plaintiff may dismiss an action without a court order by
filing . . . a stipulation of dismissal signed by all parties
who have appeared.” “[A] voluntary stipulation of
dismissal under Rule 41(a)(1)(A)(ii) . . . is immediately
self-executing. No separate entry or order is required to
effectuate the dismissal.” State Nat'l Ins. Co.
v. Cty. of Camden, 824 F.3d 399, 407 (3d Cir. 2016).
Indeed, “a ‘timely notice of voluntary dismissal
invites no response from the district court and permits no
interference by it.'” Id. (quoting In
re Bath & Kitchen Fixtures Antitrust Litig., 535
F.3d 161, 165 (3d Cir. 2008)). The case simply ends upon the
filing of the proper notice. Id.
Third Circuit Court of Appeals has not addressed whether a
defendant can be considered a “prevailing party”
upon stipulating to a dismissal with prejudice under
Fed.R.Civ.P. 41(a)(1)(A)(ii). Several district courts in this
circuit have, however, held that voluntary dismissals are not
sufficient to confer “prevailing-party” status
because they do not require “judicial intervention or
relief.” Fassl v. Our Lady of Perpetual Help Roman
Catholic Church, No. CIV.A. 05-CV-404, 2006 WL 709799,
at *4 (E.D. Pa. Mar. 13, 2006); see Evans v. Chichester
Sch. Dist., No. CIVA 07-0072, 2008 WL 4610240, at *2
(E.D. Pa. Oct. 15, 2008); Wiza v. SEPTA, No. CV
12-2748, 2013 WL 12155801, at *1 (E.D. Pa. July 31, 2013).
While none of those cases specifically involved stipulations
of dismissal with prejudice pursuant to Rule 41(a)(1)(A)(ii),
they are nonetheless instructive, as the parties stipulation
here similarly did not require “judicial intervention
or relief.” A number of district courts outside the
Third Circuit have addressed the ...