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Strohbehn v. Weltman Weinberg & Reis Co. LPA

United States District Court, E.D. Wisconsin

April 27, 2018



          J. P. Stadtmueller, U.S. District Judge.

         1. INTRODUCTION

         On 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.


         On 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.

         Rule 11 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. Id. (c)(4).

         Whether 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).

         Access 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.[1]

         Plaintiff 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.

         The 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.


         On 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).

         Plaintiff 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.

         3.1 Lodestar

         As 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 ...

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