United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
MARY M. LISI, District Judge.
This matter is before the Court on Defendant's, Twin Oaks Software Development, Inc. ("Defendant"), motion for an award of attorney's fees pursuant to 15 U.S.C. § 1692k(a)(3) and for an award of costs pursuant to Fed.R.Civ.P. 54(d)(1). Plaintiff, Christopher Laccinole ("Plaintiff"), proceeding pro se, has filed an objection to the motion.
Plaintiff brought suit against Defendant alleging violations of the Fair Debt Collections Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"), and the Rhode Island Deceptive Trade Practices Act, R.I. Gen. Laws § 6-13.1-1, et seq. See Docket #1. The Magistrate Judge recommended that this Court grant Defendant's motion for summary judgment. Id. at #42. This Court adopted the Magistrate Judge's report and recommendation and granted Defendant's motion. Id. at #49. Plaintiff appealed the Court's decision. Id. at #58. The First Circuit subsequently affirmed that decision. Laccinole v. Twin Oaks Software Development, Inc., No. 14-1705 (1st Cir. April 27, 2015).
II. 15 U.S.C. § 1692k(a)(3)
Section 1692k(a)(3) of Title 15 of the United States Codes provides, in part, that "[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." Id . "One of the purposes of 15 U.S.C. § 1692k(a)(3) is to thwart efforts of a consumer to abuse the statute...." Scroggin v. Credit Bureau of Jonesboro, Inc., 973 F.Supp.2d 961, 980 (E.D. Ark. 2013) (internal quotation marks and citation omitted), aff'd, 576 F.Appx. 632 (8th Cir. 2014). In order to recover fees, Defendant carries the burden of proof and must establish both that the suit was brought in bad faith and that the suit was instituted for the purpose of harassment. Akoundi v. FMS, Inc., No. 14 Civ. 366 (RWS), 2014 WL 6603916 (S.D.N.Y. Nov. 14, 2014); see also Crain v. Credit Protection Assn., No. 3:09-CV-2353-D, 2010 WL 2976127 (N.D. Tex. June 30, 2010) (defendant must be a prevailing party to recover fees), report and recommendation adopted, 2010 WL 2976120 (N.D. Tex. July 28, 2010). This is a "particularly difficult standard to meet." Branco v. Credit Collections Services, Inc., No. 2:10-cv-03940-MCE-EFB, 2012 WL 1143562, at *1 (E.D. Cal. 2012).
In determining whether an action was brought in bad faith and for the purpose of harassment, some courts employ a "reasonable investigation" standard. "When a reasonable investigation would reveal that... available evidence [does] not support a Federal Fair Debt Collections Practices Act claim, pursuit of such a claim is in bad faith." Jacobs v. OCWEN Loan Servicing, LLC., Civil Action No. 13-cv-02518-REB-BNB, 2015 WL 1433233, at *3 (D. Colo. March 26, 2015); see also Nguyen v. Capital One Bank (USA), N.A., No. 4:13-CV-1140 (CEJ), 2014 WL 1344512 (E.D. Mo. April 4, 2014) (for an award under § 1692k(a)(3) to be made, there must be evidence that the plaintiff knew that the claim was meritless and that the plaintiff pursued the claim with a purpose of harassing the defendant); Rink v. Bernhardt & Strawser P.A., No. 3:12-cv-675-RJC-DCK, 2014 WL 113577, at *1 (W.D. N.C. Jan. 10, 2014) (internal quotation marks omitted) (bad faith can be shown where "the suit is so completely without hope of succeeding that the court can infer that the plaintiff brought the suit to harass... rather than to obtain a favorable judgment"). Other courts require a showing of "conscious wrongdoing." See Cunningham v. Credit Management, L.P., Civil Action No. 3:09-CV-1497-G (BF), 2010 WL 3791049 (N.D. Tex. Sept. 27, 2010) (in order to establish bad faith and harassment, the defendant must show the plaintiff's conscious wrongdoing because of a dishonest purpose or moral obliquity). An individual's prior litigation history may lead a court to conclude that the litigant brought a claim in bad faith and for the purpose of harassment. See Crooker v. Delta Management Associates, Inc., Civil No. 1:CV-10-0101, 2010 WL 1390868 (M.D. Pa. April 1, 2010).
The decision whether to award fees under § 1692k(a)(3) is within the Court's discretion. Philhower v. Express Recovery Services, Inc., No. 2:12-cv-01193 DN, 2014 WL 1648724 (D. Utah April 23, 2014). Even where a defendant successfully meets the burden of proving that the action was brought in bad faith and for the purpose of harassment, the Court retains the discretion to decide whether to award attorney fees. Id . Section 1692k(a)(3) is construed narrowly so as not to discourage private litigation under the FDCPA. Nguyen, 2014 WL 1344512.
Defendant argues that Plaintiff was aware, prior to filing suit, that he was not in default when he was contacted by Defendant and that Plaintiff was not deceived by any actions taken by Defendant. Thus, Defendant concludes, Plaintiff acted in bad faith and for the purpose of harassment because he was cognizant that his lawsuit had no merit before he filed it. Defendant contends that Plaintiff's intent to harass is also evidenced by the five prior cases that Plaintiff has brought in this District, claiming violations of the FDCPA, that have all been dismissed prior to an answer having been filed. Defendant argues, but offers no evidence, that Plaintiff's intent in filing this lawsuit was simply to obtain a nuisance value settlement from Defendant.
Plaintiff states that he "has no idea how his actions... even approached harassment." Plaintiff's Memorandum in Support of Objection to Defendant's Motion at 17; Docket #61. Plaintiff maintains that his actions were not in bad faith because he has always behaved in a "professional" manner and his "decorum" with Defense counsel has been "cordial" and "polite." Id. at 7.
Where "the plaintiff is a pro se litigant... courts should afford greater leniency and rarely award attorneys' fees." Scott-Blanton v. Universal City Studios Productions LLLP, 593 F.Supp.2d 171, 175 (D.D.C. 2009). This case, like Rink, 2014 WL 113577, is a close call.
Plaintiff's [positions], however, absurd, evince a belief that he could somehow prevail by pursuing his particular legal strategy. The legal standard here is bad faith, not bad pro se lawyering, and it requires an objective showing of a subjective intent to proceed for the purpose of harassment and without hope of success. [Plaintiff was] defiant and litigious... [and] sought to prevail on his case. Ultimately, Plaintiff is saved by the [narrow construction that this Court must give the statute, ...