United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON PENDING MOTIONS REGARDING ATTORNEY'S
FEES AND COSTS
WALTON PRATT, JUDGE
matter is before the Court on Plaintiff Shayla
Washington's (“Washington”) Motion for
Assessment of Attorney's Fees and Costs (Filing No.
13), and two Supplemental Motions for Attorney's
Fees and Costs (Filing No. 16; Filing No.
19). Also before the Court is a Motion to Deny
Plaintiff's Motion for Attorney's Fees (Filing
No. 17), filed by Defendant Med-1 Solutions, LLC
(“Med-1”). Washington filed this Fair Debt
Collection Practices action against Med-1 alleging abusive
debt collection practices. Within a month after the Complaint
was filed, the parties negotiated an Offer of Judgment
(Filing No. 8), but the issue of attorney's fees
and costs remained unsettled. On May 19, 2017, Med-1 filed a
Response in Opposition to Plaintiff's Attorney's Fees
alleging that Washington is not entitled to attorney's
fees incurred after the Offer of Judgment. (Filing No.
18.) For the reasons stated below, Med-1's objection
is overruled and Washington's Motion with the
modifications set forth in this Entry is
Fair Debt Collection Practices Act (“FDCPA”)
provides for costs and a “reasonable attorney's
fee” to a prevailing party. “Unlike most private
tort litigants, [a plaintiff who brings an FDCPA action]
seeks to vindicate important * * * rights that cannot be
valued solely in monetary terms, and congress has determined
that the public as a whole has an interest in the vindication
of the statutory rights.” Tolentino v.
Friedman, 46 F.3d 645, 652 (7th Cir. 1995) (citation and
quotation omitted). “The general rule for calculating
attorney's fee awards under fee shifting statutes is
applicable to attorney's fees awards under the
FDCPA.” Young v. Accounts Recovery Bureau,
Inc., No. 1:11-cv-0025-WTL-DKL, 2012 WL 3764014, at *1
(S.D. Ind. Aug. 8, 2012) (citing Gastineau v.
Wright, 592 F.3d 747, 748-49 (7th Cir. 2010)). The
lodestar method is generally accepted as producing a
reasonable fee. Gastineau, 592 F.3d at 748. But the
court “has the flexibility to 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.”
Id. (internal quotation marks omitted).
initial matter, the Court notes that Washington filed this
action on February 20, 2017 and her attorney, John Steinkamp,
filed a similar lawsuit on February 28, 2017: Nikita
Chestnut v. Med-1 Solutions, LLC, 1:17-cv-00619-TWP-DML.
Washington seeks an award of $5, 512.50 in attorney's
fees, and $505.00 as costs and litigation expenses. Med-1
does not contest the $505.00 in costs, and the Court
grants this amount. However, Med-1 contends
that $5, 512.50 in attorney's fees is unreasonable and
that Washington is not entitled to attorney's fees
incurred after the Offer of Judgment on March 13,
2017. Washington calculated the attorney's
fees using the lodestar method, which the Court accepts as
proper. At the outset, the Court notes Med-1's Response
in Opposition was untimely. Med-1 filed its Response ten days
after Washington filed her Supplemental Motion for
Attorneys' Fees, which stated that Med-1's failure to
respond was a waiver of any objection. (Filing No. 16 at
2.) Med-1 asserts that it did not waive any objection to
the motion for fees, because it is not required to file a
response to this type of motion. (Filing No. 18 at
4.) Med-1 is correct that a response was not required,
however, the local rules of this court require that if a
party elects to respond to a motion (other than a motion for
summary judgment) the response is due within 14 days after
the motion is received. See Local Rule 7-1(2)(A).
Accordingly, Med-1's Response was ultimately filed four
weeks after it was due. While the Court may summarily rule on
a motion if an opposing party does not file a response within
the deadline, the Court will nevertheless analyze the
reasonableness of Washington's attorney's fees.
Attorney's Fees Incurred after Offer of
accepted Med-1's Offer of Judgment on March 14, 2017, and
it was filed with the Court the following day. (Filing
No. 8.) The terms of the offer of judgment included:
Pursuant to Rule 68 of the Federal Rules of Civil Procedure,
Defendant, Med-1 Solutions, LLC hereby offers to allow
Judgment to be entered against it in this action in the
amount of $1, 000.00 statutory damages and reasonable
attorney's fees and court costs. This offer of judgment
is made for the purposes specified in Federal Rule of Civil
Procedure 68, and is not to be construed as either an
admission that Defendant, Med-1 Solutions, is liable in this
action, or that the Plaintiff, Shayla Washington, has
suffered any damage.
(Filing No. 6-1.) Thus, by the explicit terms of the
Offer of Judgment, attorney's fees and court costs
incurred up to March 14, 2018 were covered under the
agreement. Thereafter, Washington's counsel and
Med-1's counsel traded emails for several days regarding
the attorney's fee portion of the settlement, including
Washington's itemization, but ultimately a fee dispute
ensued on March 20, 2017 when Med-1 rejected Washington's
proposal for any attorney's fees after March 14, 2017.
(Filing No. 13-4 at 13.) The Court must determine if
attorney's fees accruing after Washington accepted the
Rule 68 Offer of Judgment concerning the fee dispute are
noted previously, Med-1's Response, which raises the
argument that fees after March 14, 2017 are not recoverable,
was filed four weeks after the deadline had passed.
Washington asks the Court to ignore the untimely filing and
rule summarily. Even considering Med-1's objection, the
Court finds Washington is entitled to attorney's fees.
“[I]f an offer is ambiguous, any ambiguities are to be
construed against the drafter.” Aynes v. Space
Guard Prod., Inc., 201 F.R.D. 445, 448 (S.D. Ind. 2001)
(citing Webb v. James, 147 F.3d 617, 623 (7th Cir.
1998). The Aynes court found that Rule 68 permits
post-judgment recovery of costs when it considered a similar
fee dispute for claims arising under Title VII and the ADA.
Id. While the offer in this case unambiguously
covers reasonable attorneys' fees and court costs, the
offer is ambiguous as to the issue currently before this
Court-whether attorneys' fees regarding the fee dispute,
which occurred post-judgment offer, were covered under the
offer. “Thus, it is clear that Plaintiff's
acceptance of Defendant's offer is not controlling unless
the offer is unambiguous; only then would Plaintiff's
acceptance preclude post-judgment recovery of costs and
attorney's fees.” Id. at 448. Washington
did more than what was required to resolve this dispute
before engaging in further litigation regarding the fee
dispute. Washington's counsel sent Med-1's counsel
case law that supported his contention that his
attorney's fees should be awarded for time spent on the
case after acceptance of the Offer of Judgment. He also
indicated that if the parties could not resolve the fee
dispute he would have to file a fee petition with the Court.
(Filing No. 13-4 at 1.) Washington also offered to
lower the settlement amount proposal by $200.00 in an effort
to resolve without further litigation. (Filing No. 16 at
1.) Because Med-1's post-judgment offer was silent
and ambiguous as to any temporal limitation on attorney's
fees and court costs, Washington is not precluded from
post-judgment recovery regarding the ensuing fee dispute. In
fact, filing a petition with the Court, which in turn
produced more fees, was the only way for Washington to
attempt to receive the fees due.
Reasonable Hourly Rate
reasonable hourly rate for an attorney is that rate the
attorney actually charges and receives in the marketplace
from paying clients.” Luttrell v. Accounts Recovery
Bureau, Inc., No. 1:11-CV-0877-JMS-DML, 2012 WL 566396,
at *2 (S.D. Ind. Jan. 23, 2012), report and recommendation
adopted, No. 1:11-CV-00877-JMS, 2012 WL 566628 (S.D. Ind.
Feb. 17, 2012). Washington's counsel, John
Steinkamp's rate is $300.00 per hour. Decided six years
ago, the Luttrell court found that John
Steinkamp's hourly rate, then $250.00, was reasonable.
Id. It is reasonable that Washington's
counsel's rate for FDCPA litigation could have increased
to $300.00 per hour, given inflation, his increased
experience, and success and reputation in litigating these
types of cases. In any event, Med-1 does not dispute the
hourly rate charged by Washington's counsel.
“Congress provided fee shifting to enhance enforcement
of important civil rights, consumer-protection, and
environmental policies. By providing competitive rates we
assure that attorneys will take such cases, and hence
increase the likelihood that the [*653] congressional policy
of redressing public interest claims will be
vindicated.” Tolentino v. Friedman, 46 F.3d
645, 652-53 (7th Cir. 1995) (citation omitted).