United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge.
November 14, 2017, the Court granted Plaintiff's motion
for partial summary judgment. (Docket #164 at 7-13). In the
same order, the Court dismissed former defendant Access
Group, Inc. (“Access”) from this action.
Id. at 14-19. This action concluded when Plaintiff
accepted an offer of judgment from the remaining defendant,
Weltman, Weinberg & Reis Co., LPA (“WWR”).
(Docket #175). Two motions remain pending. The first is a
motion for sanctions against Plaintiff and her counsel filed
by Access prior to its dismissal. (Docket #151). The second
is a motion for attorneys' fees and costs filed by
Plaintiff and directed to WWR. (Docket #179). The Court will
address the motions in turn.
MOTION FOR SANCTIONS
October 27, 2017, Access filed its motion for sanctions
pursuant to Federal Rule of Civil Procedure 11. (Docket
#151). The Court stayed the motion pending disposition of the
parties' summary judgment motions. (Docket #161). Once
the case concluded (at least in a trial posture), the Court
resumed briefing on the sanctions motion. (Docket #175). That
briefing is now complete.
provides authority for the Court to sanction frivolous
litigation practices. These practices include offering
motions, pleadings, or briefs without a reasonable inquiry
into the facts underlying them, filing documents for purposes
of delay or to increase litigation costs, presenting legally
baseless arguments, and asserting or denying facts without
evidentiary support. See Fed. R. Civ. P.
11(b)(1)-(4). If sanctions are appropriate, the Court is
“limited to what suffices to deter repetition of the
conduct or comparable conduct by others similarly situated,
” and may include monetary or non-monetary directives.
to impose sanctions, and what form they should take, is in
large measure left to the Court's discretion. N. Ill.
Telecom, Inc. v. PNC Bank, N.A., 850 F.3d 880, 883 (7th
Cir. 2017); Fries v. Helsper, 146 F.3d 452, 459 (7th
Cir. 1998) (noting that district courts have
“significant discretion in determining what sanctions,
if any, should be imposed for a violation, subject to the
principle that the sanctions should not be more severe than
reasonably necessary to deter repetition of the conduct by
the offending person(s).”) (citation omitted). The
primary goal of sanctions under Rule 11 is not to reimburse
the movant dollar-for-dollar, but instead to punish the
violator and deter future misconduct. See Brandt v. Schal
Assoc., Inc., 960 F.2d 640, 645 (7th Cir. 1992).
accuses Plaintiff of violating Rule 11 in three ways. First,
until nearly the end of this case, Plaintiff asserted that
she had paid her student loans off completely. On that basis,
Plaintiff asserted that Access was liable to her for its
unlawful efforts to collect that debt. Access says she should
have known that this was not true, and could have
investigated this position more thoroughly prior to filing
her complaint. Second, Plaintiff also failed to investigate
her allegations regarding Access' conduct damaging her
credit score. Access believes that she has never had any
proof that this assertion was true. Finally, Access contends
that Plaintiff's counsel violated Rule 11 by serving
discovery responses in Plaintiff's name without having
her first verify them.
opposes each of Access' contentions. First, she claims
that she withdrew the offending “paid in full”
contention within the twenty-one day “safe
harbor” period provided by Rule 11. See Id.
(c)(2); (Docket #149). Second, Plaintiff argues that the
damage to her credit score was supported by expert testimony.
Third, Access' request for sanctions related to her
discovery responses is specifically excepted from Rule
11's purview. Fed.R.Civ.P. 11(d) (“This rule does
not apply to disclosures and discovery requests, responses,
objections, and motions under Rules 26 through 37.”).
Finally, her counsel generally describes the investigations
he conducted into the various issues complained-of in
Access' motion, in an effort to show that his inquiries
were reasonable. Plaintiff also curiously requests her fees
without noting compliance with Rule 11's requirements.
See (Docket #177 at 11). Access replies that
Plaintiff's withdrawal of the “paid in full”
contention was improper, regurgitates much of its other
arguments, and opposes the request for fees.
Court's discretion dictates that Access' motion must
be denied without wading into the minutiae of the
parties' arguments. Suffice to say that, as with their
previous conduct in this case, both sides offer arguments
with some apparent merit, but detract substantially from
their own positions with petty attacks on the other.
See (Docket #164 at 3 n.2). Indeed, the Court has
been surprised by the lack of professionalism from counsel
for Plaintiff and Access in litigating this matter.
Though every case has equal dignity, other matters assigned
to this branch of the Court have involved much more profound
issues of personal rights and far larger amounts in
controversy. Even in those higher-stakes cases, counsel
remained professional, courteous, and cooperative, while at
the same time offering zealous advocacy for their clients.
That behavior was wholly absent from this case. Counsel for
Plaintiff and Access determined that in this straightforward
case, no quarter should be asked or given, and that every
hill was worth dying on. This was beyond inappropriate. No
sanctions will be imposed on either side save for the
admonishments they have received herein.
MOTION FOR ATTORNEYS' FEES AND COSTS
January 15, 2018, Plaintiff filed a motion for attorneys'
fees and costs. (Docket #179). Plaintiff is entitled to such
an award pursuant to the fee-shifting provisions of the FDCPA
and FCRA. 15 U.S.C. §§ 1692k(a)(3), 1681n, 1681o.
As with all requests for attorney's fees, the Court
applies the lodestar analysis. Gastineau v. Wright,
592 F.3d 747, 748 (7th Cir. 2010). The lodestar “is
calculated by multiplying a reasonable hourly rate by the
number of hours reasonably expended.” Id. Once
reached, the Court may “adjust that figure to reflect
various factors including the complexity of the legal issues
involved, the degree of success obtained, and the public
interest advanced by the litigation.” Schlacher v.
Law Off. of Phillip J. Rotche & Assoc., P.C., 574
F.3d 852, 856-57 (7th Cir. 2009). The Court must
“provide a clear and concise explanation for its award,
and may not ‘eyeball' and decrease the fee by an
arbitrary percentage because of a visceral reaction that the
request is excessive.” Id. at 857. Plaintiff
bears the burden “of establishing entitlement to an
award and documenting the appropriate hours expended and
hourly rates.” Hensley v. Eckerhart, 461 U.S.
424, 437 (1983).
seeks over $113, 000 in fees and costs in this case. (Docket
#188 at 13-14). WWR believes she is entitled to no more than
$25, 000. (Docket #187 at 22). The Supreme Court holds that
“[a] request for attorney's fees should not result
in a second major litigation.” Hensley, 461
U.S. at 437. Despite the vast gulf between the parties'
positions and their lengthy briefs, the Court takes this
instruction to heart and will keep its fee ruling concise.
noted above, the lodestar analysis involves setting a
reasonable hourly rate and the number of hours which should
have reasonably been expended to litigate the claims at
issue. Those figures are multiplied to ...