United States District Court, D. Arizona
G. Campbell, Senior United States District Judge
has filed a motion for attorneys' fees based on a finding
that Plaintiff filed suit in bad faith. Doc. 27. Plaintiff
opposes the motion. Doc. 27-1 at 1. For reasons stated below,
the Court will deny the motion.
2018, Plaintiff filed a pro se complaint against Defendant in
Globe Regional Justice Court. Doc. 1-3. The pleading asserts
claims for defamation, negligent enablement of identity
theft, and violation of the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681n. Id.
Plaintiff sought $1, 000 in damages on each claim.
Id. Defendant removed the case to this Court based
on federal question jurisdiction. Doc. 1. The case was
dismissed due to Plaintiff's failure to comply with the
Court's orders and otherwise prosecute the action. Docs.
seeks an award of attorneys' fees under the FCRA. Doc.
27. The relevant section provides that “[u]pon a
finding by the court that an unsuccessful pleading, motion,
or other paper filed in connection with an action under this
section was filed in bad faith or for purposes of harassment,
the court shall award to the prevailing party [reasonable]
attorney's fees[.]” 15 U.S.C. § 1681n(c).
Defendant bears the burden of demonstrating that an award of
fees is warranted under § 1681n(c). See DeBusk v.
Wachovia Bank, No. CV-06-0324-PHX-NVW, 2006 WL 3735963,
at *4 (D. Ariz. Nov. 17, 2006).
contends that Plaintiff disobeyed several Court orders,
including one requiring him to appear at the Rule 16
scheduling conference. Doc. 27 at 4-5. But the Court
terminated the case as a sanction for Plaintiff's failure
to comply with its orders. Docs. 21, 25. Moreover, courts
addressing attorneys' fee awards under § 1681n(c)
“have consistently concluded that fees may be awarded
under this provision only when a pleading or other document
was filed in bad faith, and may not be based on misconduct
during the pendency of the action[.]” Arutyunyan v.
Cavalry Portfolio Servs., No. CV 12-4122 PSG AJWX, 2013
WL 500452, at *2 (C.D. Cal. Feb. 11, 2013) (citing cases);
see Rogers v. Johnson-Norman, 514 F.Supp.2d 50, 53
n.1 (D.D.C. 2007) (“The Court [has] observed that
plaintiff's contumacious conduct throughout the discovery
process amounted to bad faith, . . . but that does not amount
to a finding that the FCRA claim was filed in bad
faith.”); Wolding v. Clark, No. 10-10644, 2012
WL 6212713, at *2 (E.D. Mich. Dec. 13, 2012) (“The
plain language of the statute requires a showing that the
pleading, motion, or other paper was filed in bad
faith or for harassment purposes. It is not enough to show
that the ‘pleading, motion, or other paper' in
question later turned out to be baseless.”) (emphasis
further contends that Plaintiff's action is frivolous.
Doc. 27 at 4-6. Because Plaintiff failed to prosecute this
action, no factual or legal findings were made on the merits
of his claims. “On such a thin record, it is not
possible to conclude that the [action] was filed in bad faith
or for the purposes of harassment.” Johnson v.
Credence Res. Mgmt., No. CV 16-3936, 2017 WL 432534, at
*2 (E.D. Pa. Feb. 1, 2017); see Shah v. Collecto,
Inc., No. CIV.A. 2004-4059, 2005 WL 2216242, at *15 (D.
Md. Sept. 12, 2005) (denying fee motion under the FCRA where
there was “no indication on the record that Plaintiff
acted with a dishonest purpose or with ill will, or that
Plaintiff's claims were ‘utterly without factual
foundation'”) (citation omitted).
notes that on the same day as the scheduling conference,
Plaintiff filed a second complaint in the Globe justice court
that omitted the FCRA claim. See Doc. 27-2.
Plaintiff's decision to abandon the FCRA claim, Defendant
asserts, shows that he initially filed the claim in bad faith
and to harass Defendant. Doc. 27 at 5-6. Another plausible
explanation, however, is that Plaintiff sought to defeat
federal question jurisdiction and litigate his state law
claims in Globe. This is consistent with Plaintiff's
request for a continuance to try to obtain “federal
court civil legal help” (Doc. 23), and his statement to
defense counsel that he filed the second lawsuit because he
did not want to drive to Phoenix to litigate his claims (Doc.
27 at 3).
further notes that neither complaint contains a single
factual allegation. Doc. 27 at 5. Although the applicable
rules require that the complaint contain “[a] short and
clear statement of the factual basis of each claim, ”
Justice Ct. R. Civ. P. 111(b)(3), the Court cannot infer bad
faith or harassment from the lack of such information in a
pro se Plaintiff's pleadings.
claims that the harassing nature of Plaintiff's conduct
is evidenced by an email he sent to defense counsel
concerning the request for attorneys' fees. Doc. 27 at
5-6. Plaintiff called the attorneys “scammers”
and “dishonest dirt bags.” Doc. 27-3. Those
remarks reflect poorly on Plaintiff, but they do not
establish that he filed this action in bad faith.
summary, Defendant has not shown that Plaintiff filed any
document in this case in bad faith or for harassment purposes
as required for an award of attorneys' fees under the
FCRA. Defendant's motion therefore must be denied.
See Burns v. Bank of Am., 655 F.Supp.2d 240, 253
(S.D.N.Y. 2008) (denying fee motion where the defendant
“ha[d] not put forth sufficient evidence to establish
that Plaintiffs' FCRA claim was filed in bad faith or for
the purposes of harassment”); Roybal v. Trans
Union, No. 05-cv-1207-MCE-KJM, 2009 WL 394290, at *1
(E.D. Cal. Feb.17, 2009) (declining to award attorneys'
fees where there was “no evidence that [the] action was
brought in bad faith or for purposes of