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Deibert v. Kohn Law Firm S.C.

United States District Court, E.D. Wisconsin

October 7, 2019

MATTHEW DEIBERT, Plaintiff,
v.
KOHN LAW FIRM, S.C., Defendant.

          ORDER GRANTING-IN-PART AND DENYING-IN-PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES

          WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         Plaintiff Matthew Deibert commenced this Fair Debt Collection Practices Act (FDCPA) action against Defendant Kohn Law Firm, S.C., on January 28, 2019. On May 15, 2019, the court entered an order enforcing the parties' settlement which stated:

1. Defendant shall pay Plaintiff statutory damages of $1, 000.00 under 15 U.S.C. § 1692k(a)(1);
2. Plaintiff is entitled to reasonable costs and attorneys' fees under 15 U.S.C. § 1692k(a)(3) in an amount to be determined by the Court on a fee application;
3. Plaintiff shall file a fee petition by June 19, 2019, for the Court to decide the reasonable amount of costs and attorneys' fees; Defendant shall file a brief in opposition by July 11, 2019; and Plaintiff shall file any reply brief by July 19, 2019.

Dkt. No. 23. This matter is before the court on Deibert's motion for attorneys' fees.

         In his motion, Deibert seeks $31, 720 in attorneys' fees ($28, 795.00 for attorneys' fees through the filing of the fee petition plus $2, 925.00 for preparation of the reply brief) and $522.82 in costs. Deibert notes that this amount already accounts for a self-reduction of $2, 780.00 for 6.7 hours of work from the actual attorneys' fees incurred. Dkt. No. 25 at 3-4. Kohn opposes Deibert's motion, contending that no fees should be awarded for time spent by Deibert's attorneys after its Rule 68 offer of judgment for $1, 501.00 plus reasonable attorneys' fees and costs incurred through the date of the offer because the amount in the offer of judgment exceeds Deibert's statutory damages award of $1, 000.00. In the alternative, Kohn contends that, if Deibert is entitled to fees and costs, the amount of attorneys' fees should be reduced. Kohn also seeks $352.77 in costs that it incurred after Deibert did not accept its Rule 68 offer of judgment. For the following reasons, Deibert's motion will be partially granted.

         BACKGROUND

         In his initial complaint filed on January 28, 2019, Deibert alleged Kohn violated 15 U.S.C. §§ 1592e, 1592e(2), 1592e(5), 1592e(10), and 1692i of the FDCPA as well as Wis.Stat. §§ 421.401and 427.104(1)(j) of the Wisconsin Consumer Act (WCA) when Kohn filed an action in an improper venue. In particular, Deibert claimed Kohn initiated a Wisconsin state court lawsuit against Deibert in Douglas County when Kohn should have known that Deibert lived in Dodge County.[1] Deibert sought actual and statutory damages under the FDCPA and WCA as well as punitive damages under Wisconsin law. Dkt. No. 1 at 9.

         On January 29, 2019, one day after the lawsuit was filed, Kohn emailed opposing counsel and requested Deibert's demand in an effort to resolve the case. Kohn also provided an executed waiver of service to spare Deibert “the time and effort (and cost) of having to obtain personal service.” Dkt. No. 29-1 at 1. Opposing counsel responded to Kohn's email that same day, but did not provide a demand and instead rejected Kohn's waiver of service, stating that is would not file the waiver, because “We did not ask Kohn for a waiver of service, and we've arranged for service of process.” Id. at 3.

         The following day, January 30, Kohn again emailed opposing counsel stating “We simply want to make your client whole. . . . If you can just tell us what your client wants, we can wrap this up.” Id. at 6. Opposing counsel again refused to provide a demand. Kohn emailed opposing counsel again the same day, stating “Just tell me what you are seeking from Kohn. . . . I just need to know what it is you're looking for so that we can take care of this. . . . We want to pay.” Id. at 8. In response to Kohn's request for a demand, opposing counsel stated, “Stop asking for one.” Id. at 7.

         Unable to obtain a demand from opposing counsel, on January 31, 2019, three days after the case was filed, Kohn served Deibert with a Rule 68 offer of judgment that stated:

1. Judgment shall be entered in favor of Plaintiff and against Defendant in the cumulative amount of $1, 501.00, arising from Plaintiff's claims against Defendant in this lawsuit.
2. The judgment entered shall include an additional amount for Plaintiff's reasonable attorney's fees and costs incurred through the date of this offer in connection with the claims alleged against Defendant in the above-captioned matter. Said amount for attorney's fees and costs shall be agreed by counsel for Plaintiff and Defendant, or determined by the Court upon application by Plaintiff's ...

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