United States District Court, W.D. Wisconsin
MINNIE L. LUST, Plaintiff,
KOHN LAW FIRM, S.C., JASON D. HERMERSMANN, and KIRK R. EMICK, Defendants.
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
for plaintiff Minnie L. Lust move for $9, 362.50 in attorney
fees and $420.55 costs in this case brought under the Fair
Debt Collection Practices Act. Dkt. 32. Defendants do not
deny that Lust is entitled to reasonable fees and costs as a
prevailing party, see 15 U.S.C. § 1692k(a)(3), but they
object to the reasonableness of both the rates charged and
the amount of time claimed by counsel. For the reasons
explained below, the court will grant counsel's motion in
part and award $8, 373 in fees and $420.55 in costs.
motion before the court bears many similarities to the fee
petition filed in Broome v. Kohn Law, S.C., No.
18-cv-860-jdp (W.D. Wis.). Both cases involve claims under
the FDCPA for bringing a debt-collection lawsuit in the wrong
venue; in both cases, the plaintiff accepted an offer of
judgment that excluded attorney fees and costs; counsel for
plaintiff and defendants are the same; and two of the
defendants (Kohn and Hermersmann) are the same. Defendants
also raise many of the same objections to the fee petition in
this case that they did to the fee petition in Broome.
Because the court rejected all of the objections in Broome,
it is not necessary to discuss those again. Below the court
will discuss three issues not resolved in Broome.
and costs incurred after November 20, 2018
the defendants in Broome, defendants in this case object to
any fees and costs incurred after defendants made a
settlement offer. They again rely on Moriarty v.
Svec, 233 F.3d 955, 967 (7th Cir. 2000), which states
that “[s]ubstantial settlement offers should be
considered by the district court as a factor in determining
an award of reasonable attorney's fees, even where Rule
68 does not apply.” Because Lust ultimately accepted a
$7, 000 offer of judgment, defendants say that their previous
offer to settle the case for $7, 000 should be viewed as
court rejects this argument, but for a different reason than
in Broome. The emails between counsel show that Lust's
counsel did not object to the $7, 000 settlement offer
because it was too low, but because it included claims
against other parties. Specifically, defendants' offer
was to settle Lust's claim against defendants and
Cottonwood Financial, a creditor, which is not a party to
this case. Dkt. 18-1, at 13 (“Our offer is on behalf of
Cottonwood, Kohn, and its attorneys.”). And when
Lust's counsel stated that they interpreted
defendants' November 20 settlement offer as a
“global settlement” that included Cottonwood,
defendants did not disagree with that interpretation.
Id. at 21-23.
Lust's counsel pointed out in their correspondence, the
claim against Cottonwood raised different issues, such as
whether Cottonwood would extinguish Lust's debt.
Id. at 14. So even assuming that the $7, 000 offer
was reasonable as to Lust's claims against Kohn and its
attorneys, it doesn't follow that defendants were
entitled to force Lust to settle with Cottonwood as well. If
defendants wanted to rely on the settlement offer later to
limit counsel's fees, defendants should have made an
offer that applied to solely to them. Defendants cite no
authority for the view that a settlement offer is
“substantial” under Moriarity if it includes
different claims and parties than those included in the offer
court will sustain two objections to Lust's fee petition.
defendants object to the way that Lust's counsel
calculated their rates. Specifically, counsel charged lower
rates in 2018, but their fee petition asks for 2019 rates for
hours expended in either 2018 or 2019, even though their
petition in Broome asked for different rates for work
performed in different years. The court agrees with
defendants that counsel have not justified charging 2019
rates for 2018 work. Counsel say that they are entitled to an
“enhancement” because of the delay in receiving
their fees while the litigation is pending. Dkt. 19, at 9.
But counsel did not include a request for an enhancement in
their opening brief, so they forfeited that request. And they
did not submit evidence that they charge their own clients an
enhanced fee when fee-shifting is not available.
Jeffboat, LLC v. Director, Office of Workers'
Compensation Programs, 553 F.3d 487, 489-90 (7th Cir. 2009)
(rate is presumptively reasonable presumption “where
the attorney demonstrates that the hourly rate she has
requested is in line with what she charges other clients for
similar work”). So the court will subtract $348.25,
which is the difference between amount claimed for 2018 work
and the amount to which counsel would be entitled under their
defendants object to $641.25 of work devoted to litigating
the state court debt-collection lawsuit. They point out that
the offer of judgment is limited to attorney fees and costs
incurred for this case. Dkt. 7-1. Lust's counsel do not
address this issue in their reply brief, so the court will
subtract $641.25 from the award.
raise numerous other objections to the reasonableness of
counsel's fees, many of which the court addressed in
Broome. The court has considered the remaining objections and
concludes that, with the ...