McKeehan v. TForce Freight

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION - CINCINNATI

KEVIN MCKEEHAN, : Case No. 1:22-cv-94

Plaintiff, 2 Judge Matthew W. McFarland

v. :

TFORCE FREIGHT, et al.,

Defendants.

ORDER AWARDING DAMAGES, ATTORNEY’S FEES, AND COSTS

This matter is before the Court on Plaintiff Kevin McKeehan’s Motion for Default

Judgment (Doc. 17). On December 28, 2023, the Court granted Plaintiff's Motion for

Default Judgment as to his Fair Debt Collection Practices Act claims against Defendants

TForce Freight and United Parcel Post but requested supplemental briefing as to

damages, costs, and attorney’s fees. (See Default Judgment, Doc. 19.) Plaintiff has since

filed additional supporting documentation. (See Damages Briefing, Doc. 20; Response to

Order, Doc. 22.) This matter is therefore ripe for review, and the Court awards the

following damages, attorney’s fees, and costs. .

I. Setting Aside Default Judgment Entered Against United Parcel Post

On December 28, 2023, the Court granted default judgment against Defendants

TForce Freight and United Parcel Post but reserved ruling on the question of damages.

(Default Judgment, Doc. 19.) While the Complaint lists United Parcel Post as a Defendant,

it thereafter refers to this entity as “UPS.” (Compl., Doc. 1, Pg. ID 41.) On February 13,

2025, the Court sua sponte ordered Plaintiff to clarify the discrepancy between the

Defendant named as “United Parcel Post” in the Complaint and Summons, and Plaintiff's

apparent request to seek relief against “United Parcel Service” or “UPS.” (2/13/2025

Notation Order.) The Court further ordered that Plaintiff “show how service was

perfected as to the Defendant in question.” (Id.) Plaintiff responded by filing a notice of

voluntary dismissal as to Defendant United Parcel Post. (Notice of Dismissal, Doc. 23; see

also Response to Show Cause Order, Doc. 24.)

Federal Rule of Civil Procedure 55(c) permits a court to set aside an entry of default

for good cause, as well as to set aside a final default judgment for the reasons listed in

Rule 60(b). In pertinent part, Rule 60(b) provides that a “court may relieve a party or its

legal representative from a final judgment, order, or proceeding” when there was

“mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b). When

considering either a motion to set aside a final default judgment under Rule 60(b) or a

motion to set aside an entry of default under Rule 55(c), courts contemplate: ”(1) whether

the plaintiff will be prejudiced; (2) whether the defendant has a meritorious defense; and

(3) whether culpable conduct of the defendant led to the default.” United Coin Meter Co.,

Inc. v. Seaboard Coastline R.R., 705 F.2d 839, 845 (6th Cir. 1983); see also Dassault Systemes,

SA v. Childress, 663 F.3d 832, 839 (6th Cir. 2011) (explaining the shared standard but that

the analysis is “more demanding” under Rule 60(b)).

It is well established, however, that “Rule 60(b) applies only to final, appealable

judgments.” Dassault Systemes, 663 F.3d at 840. An order is considered “final” when it

“ends the litigation on the merits and leaves nothing for the court to do but execute the

judgment.” Bd. of Trs. of Plumbers, Pipe Fitters & Mech. Equip. Serv., Loc. Union No. 392 v.

Humbert, 884 F.3d 624, 625 (6th Cir. 2018) (quotation omitted). “ An order granting default

judgment without any judgment entry on the issue of damages,” such as the one entered

against Defendant United Parcel Post here, “is no more than an interlocutory order to

which Rule 60(b) does not yet apply.” Dassault Systemes, 663 F.3d at 840; see also Humbert,

884 F.3d at 625-26. The Court has not entered damages as to Defendant United Parcel

Post, so there has been no final default judgment. In turn, the “more lenient Rule 55(c)

[good cause] standard governs.” Dassault Systemes, 663 F.3d at 840.

In light of the apparently inadvertent naming of “United Parcel Post,” paired with

Plaintiff's notice of voluntarily dismissal as to Defendant United Parcel Post, the Court

finds good cause to set aside the entry of default—as well as the default judgment—

against Defendant United Parcel Post. In any event, the Court finds that this situation

meets the Rule 60(b) standard as well. The default judgment entered against Defendant

TForce Freight remains unchanged.

II. Damages as to Defendant TForce Freight

The Court now proceeds to assessing the damages against Defendant TForce

Freight. A default judgment on well-pleaded allegations “establishes only liability and

the plaintiff must still establish the extent of the damages.” Brown v. Halsted Fin. Servs.,

LLC, No. 3:12-CV-308, 2013 WL 693168, at *1 (S.D. Ohio Feb. 26, 2013) (citing Antoine v.

Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995)). While unanswered allegations may

result in liability, a court must “conduct an inquiry in order to ascertain the amount of

damages with reasonable certainty.” Osbeck v. Golfside Auto Sales, Inc., No. 07-14004, 2010

WL 2572713, at *4 (E.D. Mich. June 23, 2010). To do so, the Federal Rules of Civil

Procedure “require that the party moving for a default judgment must present some

evidence of its damages.” Mill’s Pride, L.P. v. W.D. Miller Enters., No. 2:07-CV-990, 2010

WL 987167, at *1 (S.D. Ohio Mar. 12, 2010).

The Court granted default judgment against Defendant TForce Freight as to

Plaintiff's Fair Debt Collection Practices Act (“FDCPA”) claim. (Default Judgment, Doc.

19.) The FDOCPA—aimed at “eliminat[ing] abusive debt collection practices by debt

collectors” —allows courts to award up to $1,000 in statutory damages. 15 U.S.C. §

1692(e), 1692k(a)(2)(A). Proof of actual damages is not a prerequisite to recover such

statutory damages. Brown, 2013 WL 693168, at *1 (citing Wright v. Fin. Serv. of Norwalk,

Inc., 22 F.3d 647, 651 (6th Cir. 1994)). In awarding FDCPA statutory damages, courts

consider “the frequency and persistence of noncompliance by the debt collector, the

nature of such noncompliance, and the extent to which such noncompliance was

intentional.” 15 U.S.C. § 1692k(b)(1).

Here, Plaintiff requests FDCPA statutory damages of “$1,000 against each

Defendant and that the Court consider an award for each of the violations.” (Damages

Briefing, Doc. 20, Pg. ID 229.) Taking the allegations in the Complaint as true,

“Defendants [sent] threatening notices and telephone calls harassing [Plaintiff]

continuously in connection with the collection of $1,250.72.” (Compl., Doc. 1, ¥ 30; see also

37-38, 40.) Defendants continued to harass Plaintiff despite Plaintiff's attorney sending

a cease-and-desist letter. (Id. at J 31-32.) In light of Defendant TForce Freight’s multiple

harassing phone calls, as well as evidently remaining undeterred despite a cease-and-

desist letter, the Court finds an award of $1,000 in statutory damages to be appropriate.

See, e.g., Fultz v. Zirpola, No. 5:21-CV-43, 2021 WL 4975100, at *3 (N.D. Ohio Oct. 26, 2021)

(awarding full $1,000 in statutory damages when violations were “numerous, egregious,

and intentional”); Calvert v. Smith, No. 1:22-CV-384, 2023 WL 5804182, at *3 (S.D. Ohio

Sept. 7, 2023) (similar). Though Plaintiff also asks the Court to consider an award for each

specific violation, he has not provided authority or additional reasoning as to why such

damages are warranted here. See Wright, 22 F.3d at 651 (holding that FDCPA statutory

damages are limited to “$1,000 ‘per proceeding’ rather than ‘per violation’”). For these

reasons, the Court awards $1,000 in statutory damages.

III. Attorney’s Fees

In the case of a successful action, the FDCPA allows for an award of “a reasonable

attorney's fee as determined by the court.” 15 U.S.C. § 1692k(a)(3). Specifically, courts use

the well-established lodestar method as the starting point for determining an award of

reasonable attorney’s fees. Imwalle v. Reliance Medical Prods., Inc., 515 F.3d 531, 551 (6th

Cir. 2008). The lodestar amount is calculated by simply “multiplying the number of hours

reasonably expended on the litigation by a reasonable hourly rate.” Id.

A. Reasonable Hourly Rate

District courts have broad discretion in determining a reasonable hourly rate.

Hudson v. Reno, 130 F.3d 1193, 1208 (6th Cir. 1997). Generally, courts consider the

prevailing market rate in the relevant community. Blum v. Stenson, 465 U.S. 886, 895

(1984). The prevailing market rate, in turn, is “the rate that lawyers of comparable skill

and experience can reasonably expect to command within the venue of the court of

record.” Geer v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004). Courts may also look to other

markets, such as a national market, an area of specialization, or any other appropriate

market for a prevailing market rate. Louisville Black Police Officers Org. v. City of Louisville,

700 F.2d 268, 278 (6th Cir. 1983).

As a practicing attorney with over 45 years of experience, Plaintiff's counsel seeks

an hourly rate of $400. (Damages Briefing, Doc. 20, Pg. ID 229-30; Green Aff., Doc. 22-2,

Pg. ID 236.) The Court finds the rate of $400 per hour to be reasonable in this context. See,

e.g., Morton v. O’Brien, No, 2:18-CV-445, 2022 WL 1637725, at *3-4 (S.D. Ohio May 24, 2020)

(finding rates of both $400 per hour for an attorney with between 16 to 20 years of

experience and $425 per hour for an attorney with over 41 years of experience to be

reasonable in FDCPA case).

B. Reasonable Number of Hours

When determining the reasonable number of hours, “the standard is whether a

reasonable attorney would have believed the work to be reasonably expended in pursuit

of success at the point in time when the work was performed.” Brown, 2013 WL 693168,

at *3 (citing Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 1177 (6th Cir. 1990)). “In

addition, the documentation provided in support of the hours charged must be

sufficiently detailed to enable the court to determine, with a high degree of certainty, that

such hours were actually and reasonably expended.” Id. (citing Bench Billboard Co. v. City

of Toledo, 759 F. Supp. 2d 905, 913 (N.D Ohio 2010)).

Plaintiff requests to be awarded attorney’s fees for 6.25 billed hours on this case.

(Damages Briefing, Doc. 20, Pg. ID 230.) Counsel has submitted an itemized invoice that

includes detailed descriptions of the requested billable hours, as well as hours worked by

counsel for which he does not seek attorney's fees. (Invoice, Doc. 22-1, Pg. ID 235.) See

Searcy v. GUUAS, LLC, No. 2:19-CV-3124, 2020 WL 9849810, at *3 (S.D. Ohio Nov. 18,

2020) (recognizing that counsel had “written off significant non-compensable time,”

including “time responding to a show cause order”). The Court finds that these 6.25 hours

are supported by detailed documentation and that “[a] reasonable attorney would have

believed that these hours needed to be reasonably expended in pursuit of the default

judgment.” Brown, 2013 WL 693168, at *3 (finding 7.6 hours to be reasonable time

expended to prepare the complaint, apply for entry of default, and file a motion for

default judgment in FDCPA case).

C. The Lodestar Amount

As established above, Plaintiff's counsel reasonably seeks attorney's fees in the

amount of $2,500 for allocating 6.25 hours to this matter at a rate of $400 per hour.

(Damages Briefing, Doc. 20, Pg. ID 229-30.) Therefore, Plaintiff is awarded a total of $2,500

in attorney’s fees.

IV. Costs

Finally, Plaintiff seeks an award of costs in the amount of $402, which represents

the filing fee in this matter. (Damages Briefing, Doc. 20, Pg. ID 229; Compl., Doc. 1.) The

FDCPA authorizes an award of such costs. See 15 U.S.C. § 1692k(a)(3); Searcy, 2020 WL

9849810, at *4 (collecting cases). Therefore, the Court finds $402 in costs to be reasonable

and compensable pursuant to the FDCPA.

CONCLUSION

For the foregoing reasons, the Court ORDERS the following:

1. The Entry of Default, as well as the Default Judgment, against Defendant United

Parcel Post are both SET ASIDE;

2. Defendant United Parcel Post is DISMISSED WITH PREJUDICE, pursuant to

Plaintiff's Notice of Dismissal (Doc. 23);

3. Plaintiff is AWARDED $1,000.00 in FDCPA statutory damages against

Defendant TForce Freight;

4. Plaintiff is AWARDED $2,500.00 in attorney’s fees against Defendant TForce

Freight;

5. Plaintiff is AWARDED $402.00 in costs against Defendant TForce Freight; and

6. This case is TERMINATED from the Court’s docket.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

By: = ah wm i

JUDGE MATTHEW W. McFARLAND