United States District Court, D. New Mexico
NORBERT A. SCHUELLER, Plaintiff,
WELLS FARGO & COMPANY, d/b/a WELLS FARGO BANK, N.A., d/b/a WELLS FARGO HOME MORTGAGE, Defendant.
MEMORANDUM OPINION AND ORDER
MATTER is before the Court on Wells Fargo Bank, N.A.’s
Motion for Attorney’s Fees (Doc. 39) filed on
April 9, 2018. Having considered the record, submissions of
counsel, and relevant law, the Court finds that
Defendant’s motion should be granted in
Judge Marth Vazquez laid out the full procedural and factual
background of this matter in her March 28, 2018 Memorandum
Opinion and Order (see Doc. 36 at 1-7), and I will
recite only those facts relevant to the motion at issue here.
filed his first lawsuit against Wells Fargo & Company
(Wells Fargo) in 2011 in federal court. Id. at 2;
see also Schueller v. Experian Info. Sols., Inc., et
al., No. 11-cv-00955 MCA/LFG, Compl. (D.N.M. Oct. 25,
2011). Plaintiff asserted several claims against Wells Fargo
in the 2011 lawsuit, including defamation and conversion
claims, as well as claims under the Fair Credit Reporting Act
(FCRA). See Doc. 36 at 2. Plaintiff alleged that
Wells Fargo had unlawfully and fraudulently continued to
withdraw money from Plaintiff’s bank account for
mortgage payments for certain real property, even after
Plaintiff’s personal liability for the mortgage was
discharged during 2010 bankruptcy proceedings. See
Id. at 1-2.
30, 2012, the court granted Wells Fargo’s motion to
dismiss. See Id. at 2. “[T]he Court explained
that Plaintiff’s bankruptcy discharge only discharged
his personal liability for the debt, not the mortgage lien .
. . .” Id. at 3. Because the bankruptcy
discharge included an explanation that Plaintiff could opt to
“voluntarily pay any debt that [had] been
discharged[,]” and because there was evidence that
Wells Fargo withdrew the payments “from
Plaintiff’s bank account at his direction[,]”
Plaintiff had failed to state a claim for conversion.
Id. at 3-4. The court found, however, that because
there was a chance Plaintiff could allege additional
facts to demonstrate that these payments were not voluntary,
the claim should be dismissed without prejudice. Id.
at 4. The court also held that the record did not support
Plaintiff’s defamation or FCRA claims and dismissed
those claims with prejudice. Id.
Fargo filed a motion for attorney’s fees and costs,
which the court granted in part on March 27, 2013. See
Schueller, No. 11-cv-00955, Mot. for Attys’ Fees
& Costs (Aug. 29, 2012); Mem. Op. & Order (D.N.M.
Mar. 27, 2013) (“2011 Schueller Mem. Op. &
Order”). “The Court described Plaintiff as a
‘law-trained pro se litigant and frequent
filer of various and sundry lawsuits . . . .’”
Id. at 4 (quoting 2011 Schueller Mem. Op. &
Order, at *1). The court held that Plaintiff’s
2011 lawsuit was frivolous, but it did not conclude that
Plaintiff acted in bad faith. Id. at 4-5 (discussing
2011 Schueller Mem. Op. & Order, at *9). The
court therefore declined to award fees to Wells Fargo up to
the filing of the motion to dismiss. Id. at 5. After
Plaintiff was apprised of the relevant law through Wells
Fargo’s motion and the magistrate judge’s report
and recommendation, however, Plaintiff “stubbornly, and
without any legal basis for doing so, persisted in pursuing
his claims in bad faith.” Id. (quoting
2011 Schueller Mem. Op. & Order, at *10). Thus,
the court awarded Wells Fargo fees “from that point
forward in replying to Schueller’s bad-faith response
to the motion to dismiss . . . .” Id. (quoting
2011 Schueller Mem. Op. & Order, at *10).
Plaintiff appealed to the Tenth Circuit, which upheld the
district court’s decisions. See id.; see
also Schueller v. Wells Fargo & Co., 559 F.
App’x 733 (10th Cir. 2014). “Plaintiff filed a
petition for writ of certiorari to the United States Supreme
Court, which was denied on October 6, 2014.” Doc.
36 at 6 (citing Schueller v. Wells Fargo &
Co., 135 S. Ct. 275 (2014)).
Plaintiff filed this lawsuit against Wells Fargo in state
court on January 15, 2016, and Wells Fargo promptly removed
the action to federal court. See Docs. 1;
1-1. As Judge Vazquez noted in her March 28, 2018
Memorandum Opinion and Order, Plaintiff’s 2016 claims
“are based on the same conduct that was at
issue in the 2011 Action . . . .” Doc. 36 at 6
(emphasis in original). Not surprisingly, then, Wells Fargo
moved to dismiss on the basis “that Plaintiff’s
claims are barred under the doctrine of res judicata, and
that, even if res judicata does not apply, Plaintiff’s
claims are subject to dismissal because he has failed to
properly state a claim upon which relief can be granted for
either defamation or conversion.” Id. at 8.
Judge Vazquez ultimately found “that Plaintiff’s
defamation claim is barred by claim preclusion” and
dismissed it with prejudice. Id. at 11. Plaintiff
failed to plead any additional facts to support his
conversion claim, so Judge Vazquez dismissed that claim with
prejudice as well. Id. at 12-14.
relevant to this motion, Judge Vazquez also granted Wells
Fargo’s motion for Rule 11 sanctions. See Id.
at 14-18. Wells Fargo asked for attorney’s fees and
costs due to the fact that Plaintiff’s claims and legal
theories were identical in both his 2011 and 2016 lawsuits.
See Id. at 16. Noting that “Plaintiff has been
on notice of the baselessness of his claims” at least
since the award of fees in his 2011 lawsuit, Judge Vazquez
found that “no ‘reasonable and competent attorney
would believe in the merit’ of the arguments on
which” Plaintiff bases his current lawsuit.
Id. at 17 (quoting Dodd Ins. Servs., Inc. v.
Royal Ins. Co. of Am., 935 F.3d 1152, 1155 (10th Cir.
1991) (internal citations omitted)). Thus, by
“continuing to pursue the instant action, Plaintiff is
in violation of Rule 11(b)” and the requested sanctions
are proper. Id. at 18. Judge Vazquez directed
“Wells Fargo to file an application for
attorney’s fees and costs, including supporting
affidavits and documentation,” which is now before the
undersigned magistrate judge. See id.; Doc.
for Attorney’s Fees
Fargo now seeks $24,584.06 in attorneys’ fees for 78.70
hours of legal services, $160 in paraprofessional fees for
1.60 hours of paraprofessional services, and $410 in costs to
cover the filing fee. See Doc. 39-1 at 2-3; see
also Doc. 39-1, Ex. 1, at 6-7. Plaintiff failed
to file a response to Wells Fargo’s Motion for
Attorney’s Fees, which pursuant to our District’s
Local Rules “constitutes consent to grant the
motion.” See D.N.M.LR-Civ. 7.1(b).
determine the reasonableness of a fee request, a court must
begin by calculating the so-called ‘lodestar
amount’ of a fee, and a claimant is entitled to the
presumption that this lodestar amount reflects a
‘reasonable’ fee.” Auge v. Stryker
Corp., No. 14-CV-1089 KG/SMV, 2017 WL 4355974, at *1
(D.N.M. Sept. 28, 2017) (quoting Robinson v. City of
Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) (internal
citations omitted)). “The lodestar is ‘the number
of hours reasonably expended on the litigation multiplied by
a reasonable hourly rate,’ which produces a
presumptively reasonable fee that may in rare circumstances
be adjusted to ...