United States District Court, D. Colorado
MICHAEL A. COLLINS, Plaintiff,
TRANS UNION, LLC, EXPERIAN INFORMATION SOLUTIONS, INC., EQUIFAX INFORMATION SERVICES LLC, and LEXISNEXIS RISK DATA RETRIEVAL SERVICES LLC, individually, Defendants.
R. Brooke Jackson United States District Judge
This case is once again before the Court, this time on defendant Trans Union, L.L.C.’s motions for costs and attorney’s fees and two motions by plaintiff Michael A. Collins relating to his appeal. The Court grants Trans Union’s motions but awards less than requested. The Court grants plaintiff’s motions.
The pertinent facts and case history were largely provided in my order of August 3, 2015 granting motions for summary judgment filed by defendants Trans Union and Experian Information Solutions, Inc. Briefly, Mr. Collins, representing himself pro se, sued Trans Union, Experian and others, claiming that they had reported false information about his credit history from 2005 through the present time. However, in 2009 Mr. Collins had filed a suit against Trans Union, Experian and others essentially raising the same claims against them that he reasserted in the present case. Both Trans Union and Experian settled the 2009 case, making monetary payments to Mr. Collins in exchange for very complete releases of his claims. Undeterred, Mr. Collins sued them again, this time claiming that he was fraudulently induced to enter into those settlements. He asserted claims against Trans Union and Experian for (1) violation of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x; (2) negligent misrepresentation; (3) false representation; (4) fraudulent misrepresentation; (5) fraud in the inducement; (6) fraudulent concealment; and (12) violation of the Colorado Consumer Protection Act (hereinafter “CCPA”), C.R.S. §§ 6-1-101-1121.
Ultimately both Trans Union and Experian filed motions for summary judgment, arguing, among other things, that the claims were barred by the terms of the previous settlements. ECF Nos. 151 and 156. The Court referred the summary judgment motions to United States Magistrate Judge Nina Y. Wang who recommended that both motions be granted. ECF No. 177. Mr. Collins objected, but on my de novo review I agreed with Judge Wang and granted summary judgment in favor of both defendants. ECF No. 229.
Like Judge Wang, I agreed that the settlement agreements executed by Mr. Collins on May 28, 2009 (Trans Union) and August 4, 2009 (Experian) fully released his claims arising from conduct occurring up to that time. Among other things, Judge Wang and I agreed that Mr. Collins’ representations in the settlement agreements that he had not relied upon any statements or representations by the defendants or their counsel were fatal to his present attempt to disregard the settlements, and that there was no genuine dispute of material fact concerning the claim that Mr. Collins was fraudulently induced into signing them. Id. at 4-7.
Mr. Collins also asserted that Trans Union and Experian had violated the Fair Credit Reporting Act (hereinafter “FCRA”) on a few occasions after the 2009 settlements. Judge Wang and I both examined the claimed violations, four involving Trans Union and two involving Experian. We both found that the two defendants had presented affirmative evidence establishing the accuracy of the challenged reports; that Mr. Collins had presented no contrary evidence; and that there was no triable issue as to them. Id. at 7-8.
In addition I dismissed Mr. Collins’ common law negligence and fraud claims, concluding that they were simply alternative legal theories based on the same conduct as the FCRA claims. Id. at 8-9. Finally, I dismissed his claim asserted under the CCPA. Judge Wang had listed several reasons for dismissing that claim. I addressed only one. Mr. Collins did not allege that the defendants had engaged in practices that impacted anyone other than himself. Because he completely ignored the public impact element of a CCPA claim, the claim had no merit. Id. at 9-10.
In addition to dismissing the claims against Trans Union and Experian with prejudice, I awarded costs to them as prevailing parties pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1. Experian submitted a bill of costs, and costs were ultimately taxed by the Clerk’s Office in the amount of $1, 839.45. ECF No. 251. Trans Union, however, filed the two motions now pending. First, it moved for an award of costs in the amount of $2, 065.53. ECF No. 232. Second, it moved for an award of attorney’s fees in the amount of $70, 559.90. The Court conducted an evidentiary hearing on the motions on November 18, 2015.
ADDITIONAL FACTS PERTINENT TO THE ATTORNEY’S FEES MOTION
Trans Union reported that it had incurred attorney’s fees in this case of approximately $130, 000. However, recognizing that that the billings were “high, ” Trans Union elected not to seek an award of fees incurred after June 29, 2015. That excluded, among other things, hours recorded for responding to various other motions filed by Mr. Collins, responding to his objections to the magistrate judge’s recommendations, the preparation of the pending motions, and the preparation for and presentation at the evidentiary hearing on the motions. A document entitled “Summary of Relevant Time Entries, ” which identifies the time for which Trans Union is seeking an award was admitted as hearing Exhibit I. Because the same information was also filed as an exhibit to the motion, namely ECF No. 233-3, I will refer to the summary by the ECF number in this order.
The hearing focused largely on Mr. Collins’ extensive litigation history. Hearing exhibit B includes pleadings from approximately 27 cases that Mr. Collins filed pro se, mostly but not all in the Eighteenth Judicial District of Colorado (the Arapahoe County District Court). Those cases were filed between 2008 and 2015, and it is evident from the pleadings in those cases that Mr. Collins’ history of filing similar cases extends back well before 2008. These cases involved the same types of claims as were asserted in the present case. More troubling, however, is that on several occasions Mr. Collins has refiled claims in a new lawsuit after the claims were previously adjudicated or settled, just as he did in the present case:
• On December 12, 2008 Judge Rafferty in the Arapahoe County District Court dismissed a breach of fiduciary duty claim filed by Mr. Collins against Washington Mutual Bank on grounds that the same claim, characterized as a negligence claim, had been dismissed on summary judgment in a previous suit and was therefore barred by the doctrine of claim preclusion. Michael A. Collins v. Long Beach Mortgage Co. dba Washington Mutual Bank, No. 08CV1033, slip. op. at 3-4, found in defendant’s hearing exhibit B at B-1.
• On December 19, 2008 Judge Spear in the Arapahoe County District Court dismissed Mr. Collins’ against HSBC Auto Finance on grounds that the claims were settled in a previous agreement and were therefore barred by claim preclusion. Michael v. Household Finance Corporation, No. 08cv1503, slip op. at 13, found in hearing ex. B-2.
• On January 10, 2010 Judge Spencer in the Arapahoe County District Court dismissed Mr. Collins’ efforts to re-litigate claims against Long Beach Mortgage Company that had previously been dismissed by Judge Wheeler in Case No. 07cv1377. Michael A. Collins v. Long Beach Mortgage Company, No. 09cv1554. The court’s order was based on claim preclusion. Slip op. at 1-2, found in hearing exhibit B-8.
• On April 22, 2012 Judge Wheeler in the Arapahoe County District Court dismissed Case No. 11CV2567, Michael A. Collins v. Alpine Credit, with prejudice. Slip op. at 3-4, found in defendant’s hearing exhibit B-13. The court found that Mr. Collins’ claims were precluded under the doctrine of claim preclusion because they arose from the same underlying debt, were asserted against the same defendant, and either were or could have been fully adjudicated in a 2009 case (where the court had granted summary judgment against Mr. Collins). Id.
• On October 30, 2012 Magistrate Judge Tafoya in the United States District Court for the District of Colorado recommended that summary judgment be granted dismissing Mr. Collins’ claims in Michael A. Collins v. BAC Home Loans Servicing, LP, No. 12cv375, removed from the Arapahoe County District Court. The recommendation was adopted by the district court, and the final judgment dismissing the case is found in hearing exhibit B-20. The recommendation and order adopting it are not included in B-20, but I take judicial notice of the files of this court. Judge Tafoya recommended, and the district court agreed, that several of Mr. Collins’ claims (including a CCPA claim) were barred by the doctrine of res judicata, having been previously litigated in a case brought in the Arapahoe County District Court and removed to this court. ECF No. 53 in 12cv375 at 20-27.
• On March 8, 2013 Judge Horton in the Arapahoe County District Court dismissed Case No. 11CV2564, Michael A. Collins v. United Resource Systems, Inc. Slip op. at 3-5, found in hearing exhibit B-16. The court found that claim preclusion prevented Mr. Collins from relitigating claims he had brought (and that were dismissed) in a 2009 case. Id. The district court’s order and judgment were affirmed on appeal.
• On January 8, 2013 Judge Pratt in the Arapahoe County District Court dismissed Case No. 12CV237, Michael A. Collins v. HSBC Auto Finance, Inc. with prejudice. Slip op. at 4-5, found in hearing exhibit B-25. The court found, among other things, that claim preclusion prevented Mr. Collins from relitigating claims that he had brought and settled in a 2005 case. The Court also noted that Mr. Collins had tried once before to relitigate the same claims in a 2008 case, only to have them dismissed under the doctrine of claim preclusion. Id.
• On October 10, 2013 Judge Hannen in the Arapahoe County District Court dismissed Case No. 13CV758, Michael A. Collins v. Smoky Hill Road Apartments, with prejudice. This was a collections dispute arising out of a lease agreement. The court found that either collateral estoppel or issue preclusion barred nine of the 20 claims Mr. Collins asserted because they had previously been litigated in a 2011 case. Ex. B.29. The other 11 claims were dismissed on other grounds.
In addition, the records of these cases indicate that in at least nine of his previous lawsuits Mr. Collins has asserted violations of the CCPA. See hearing exhibits B-3, B-19, B-20, B-22, B- 23, B-25, B-27, B-28 and B-29. Significantly, in three of those, all filed before the present action, the court noted that Mr. Collins had not addressed or satisfied the public impact element.
• In Michael Collins v. HSBC Auto Finance, No. 12cv237 (Jan. 8, 2013), the court granted summary judgment dismissing the CCPA claim on grounds, among others, that he had provided no evidence to any public impact of the alleged deceptive trade practices. Slip op. at 6-7, found in hearing exhibit 25.
• In Michael A. Collins v. Corum Real Estate Group, Inc., No. 11cv2566 (Jan. 30, 2013), the court granted summary judgment dismissing the CCPA claim for failure to present any evidence of a public impact. Slip op. at 2-3, found in hearing exhibit B-28.
• In Michael A. Collins v. Smokey Hills Road Apartments, No. 13cv758 (Oct. 10, 2013), the court granted summary judgment dismissed the CCPA claim on grounds that it was precluded by the court’s previous dismissal of the same claim in 11cv2566 on the public impact requirement. Slip Op. at 4-5, found in hearing exhibit B-29.
I. ATTORNEY’S FEES.