United States District Court, D. South Carolina, Anderson/Greenwood Division
("United States of America") filed this action
alleging that Defendant ("Zachary Burkett") has
failed to repay student loans. (ECF No. 1.) On April 25,
2016, Plaintiff filed a Motion for Summary Judgment. (ECF No.
23.) After Defendant failed to timely respond, the court
extended the response deadline to June 27, 2016.
(See ECF No. 30.) Nonetheless, Defendant failed to
timely respond to the Motion. (See id.)
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02,
the matter was referred to United States Magistrate Judge
Jacquelyn D. Austin, for pre-trial handling. On August 30,
2016, the Magistrate Judge issued a Report and Recommendation
("Report") recommending that Plaintiffs motion for
summary judgement be granted. (ECF No. 30.)
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge makes only a
recommendation to this court. The recommendation has no
presumptive weight. The responsibility to make a final
determination remains with this court. See Matthews v.
Weber, 423 U.S. 261, 270-71 (1976). This court is
charged with making a de novo determination of those portions
of the Report to which specific objections are made, and the
court may accept, reject, or modify, in whole or in part, the
Magistrate Judge's recommendation, or recommit the matter
with instructions. See 28 U.S.C. § 636 (b)(1).
Objections to a Report and Recommendation must specifically
identify portions of the Report and the basis for those
objections. Fed.R.Civ.P. 72(b). "[I]n the absence of a
timely filed objection, a district court need not conduct a
de novo review, but instead must 'only satisfy itself
that there is no clear error on the face of the record in
order to accept the recommendation.'" Diamond v.
Colonial Life & Ace. Ins. Co., 416 F.3d 310, 316
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
committee's note). Failure to timely file specific
written objections to a Report will result in a waiver of the
right to appeal from an Order from the court based upon the
Report. 28 U.S.C. § 636(b)(1); Thomas v. Arn,
474 U.S. 140, 155 (1985); Wright v. Collins, 766F.2d
841 (4th Cir. 1985); United States v. Schronce, 727
F.2d 91, 94 (4th Cir. 1984).
no clear error on the record, the court adopts the Report of
the Magistrate Judge granting Plaintiffs Motion for Summary
Judgment. Relying on Plaintiffs Affidavit in Support in of
Plaintiff s Calculation of Damages (ECF No. 34), the court
holds that Plaintiff is entitled to judgment in the amount of
the Higher Education Act of 1965, as amended, provides that a
borrower who has defaulted on his or her student loan is
required to pay "reasonable collection costs."
United States v. Milford, C/A No. 2:15-cv-02009-RMG,
ECF No. 63 at 1 (D.S.C. Sept. 19, 2016) (citing 20 U.S.C.
§ 1091a(b)(1)). Because the statute leaves
"reasonable collection costs" undefined, the court
defers to the Department of Education's interpretation of
the term, if it is found to be reasonable. Id.
(citing Chevron U.S.A. Inc. v. Nat. Res. Defense Council,
Inc., 467U.S. 837, 842-43 (1984)). The Department of
Education has interpreted "collection costs" to
include attorneys' fees incurred in bringing an action to
recover student loans. Id. (citing 34 C.F.R. §
682.410(b)(2)). Therefore, attorneys' fees are a
component of "reasonable collection costs" under 20
U.S.C. § 1091a. Milford, C/A No.
2:15-cv-02009-RMG, ECF No. 63 at 1.
having carefully considered Plaintiffs Affidavit of
Attorneys' Fees, in light of the factors set forth in
Barber v. Kimbrell's, Inc., 577 F.2d 216 (4th
Cir. 1978), the court finds Plaintiffs request
appropriate. (See ECF No. 34-1); see also
Local Civil Rule 54.02(A) (D.S.C). Specifically, the court
notes that Defendant has not filed any objections to
Plaintiffs calculations. Additionally, the court finds that
Plaintiff's hourly rate of $165.00 (see ECF No.
34-1 at 2, 5) is appropriate in this case. Milford,
C/A No. 2:15-cv-02009-RMG, ECF No. 63 at 2 3 (finding a
$165.00 hourly rate to be appropriate in a contested debt
collection action in South Carolina federal court). However,
the court has reviewed the time sheets and has observed an
inconsistency between the hours charged on the time sheet and
the hours asserted by Ms. Ryan in her Affidavit.
Specifically, the time sheet shows that Ms. Ryan charged 22.6
hours for her work on this case, while in her Affidavit she
claims that she spent 6.6 hours working on the case.
(See ECF Nos. 34-1 at 5, 34-2 at 1.) Given this
inconsistency, the court will err on the side of caution and
calculate the attorneys' fees according to the Affidavit.
Consequently, the court awards Plaintiff $1, 864.50 in
attorneys' fees. (See ECF Nos. 34-1,
34-2.) Additionally, the court awards Plaintiff
$141.26 in costs, and post-judgment interest. (ECF. No. 34 at
foregoing reasons, the court GRANTS
Plaintiffs Motion for Summary Judgment (ECF No. 23),
ADOPTS the Report and Recommendation (ECF
No. 30), and AWARDS Plaintiff a judgment in
the amount of $255, 117.53, $1, 864.50 in attorneys'
fees, $141.26 in costs, and post-judgment interest.
IS SO ORDERED.
Barber adopted the following
factors: 1) the time and labor expended; (2) the novelty and
difficulty of the questions raised; (3) the skill required to
properly perform the legal services rendered; (4) the
attorney's opportunity costs in pressing the instant
litigation; (5) the customary fee for like work; (6) the
attorney's expectations at the outset of the litigation;
(7) the time limitations imposed by the client or
circumstances; (8) the amount in controversy and the results
obtained; (9) the experience, reputation and ability of the
attorney; (10) the undesirability of the case within the
legal community in which the suit arose; (11) the nature and
length of the professional relationship between attorney and
client; and (12) attorneys' fees awards in similar cases.
577 F.2d at 226 n.28.
 The court observes that the timesheet
shows that Ms. Ryan worked additional uncharged hours and
finds it entirely plausible that Ms. Ryan worked the 6.6
hours asserted in her Affidavit.
Mr. Wilcox receives $775.50 in
attorneys' fees (4.7 hours times the $165.00 hourly
rate), while Ms. Ryan receives $1089.00 in attorneys'
fees (6.6 hours times the $165.00 hourly rate).
Thus, the total ...