United States District Court, Southern District of New York
June 24, 1999
STEVEN SHAPIRO, PLAINTIFF,
CREDIT PROTECTION ASSOCIATION I, INC. AND BLOCKBUSTER VIDEO, INC., DEFENDANTS.
The opinion of the court was delivered by: Sweet, District Judge.
By motion dated February 12, 1999, counsel for plaintiff Steven
Shapiro ("Shapiro") has applied for attorney's fees of $2,977.50
in an action, brought under the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692 et seq. (the "FDCPA" or the "Act"), in
which his client accepted an offer of judgment from defendants
Credit Protection Association I, Inc. ("CPAI") and Blockbuster
Video, Inc. ("Blockbuster"). For the reasons set forth below the
application will be granted and a reasonable attorney's fee of
$375 will be awarded.
"Mistakes were made," see Cindy Hall, Watergate
Retrospective Quotes of the Famous and the Infamous, Gannett
News Serv., June 10, 1992, and this application establishes that
the complications encountered in rectifying the mistakes are far
greater than the amounts involved.
Shapiro owed Blockbuster $132.94. Blockbuster demanded payment
in a letter containing language that Shapiro and his counsel,
experienced in FDCPA matters, believed to be actionable. A
complaint was filed on November 20, 1998, and a pretrial
conference was scheduled by the Court. On February 10, 1999,
before the pretrial conference, Blockbuster and CPAI made an
offer of judgment, pursuant to Rule 68, Fed.R.Civ.P., "in the sum
of $1,300, which amount includes costs accrued to date." (Defs.'
Aff.Opp.Req. Att'ys' Fees Ex. C.)
According to Blockbuster and CPAI, at the February 10, 1999
pretrial conference counsel met and plaintiff's counsel Adam J.
Fishbein, Esq. ("Fishbein") allegedly inquired of Diane K. Kanca,
Esq. ("Kanca"), attorney for the defendants, whether the offer of
judgment included attorney's fees. Kanca recalls responding that
it did. Fishbein contests this version of events.
The very next day Fishbein by letter accepted the offer of
judgment, claiming that he reserved the right to make a fee
application. Kanca responded, stating her position that fees were
included in the offer of judgment. Shortly thereafter, Fishbein
submitted the instant motion. While oral argument was scheduled
for April 14, 1999, plaintiffs counsel did not appear for
argument and the motion was taken on submission. Papers were
received by the Court through May 20, 1999, at which time the
instant motion was deemed fully submitted.
Under the FDCPA, a prevailing plaintiff may be awarded actual
damages, see 15 U.S.C. § 1692k(a)(1), as well as "additional"
or "statutory" damages, at the discretion of the court, of up to
$1000. See 15 U.S.C. § 1692k(a)(2)(A). To determine the amount
of a defendant's liability under § 1692k(a)(2)(A), courts are to
consider, among other relevant factors, "the frequency and
persistence of noncompliance by the debt collector, the nature of
such noncompliance, and the extent to which such noncompliance
was intentional." 15 U.S.C. § 1692k(b)(1). The amount of
statutory damages is wholly within the discretion of the court.
Congress specifically provided by statute that successful
plaintiffs in FDCPA cases are entitled to reasonable attorney's
fees. Pipiles v. Credit Bureau, 886 F.2d 22, 28 (2d Cir. 1989);
Emanuel v. American Credit Exchange, 870 F.2d 805, 808-09 (2d
Cir. 1989). As 15 U.S.C. § 1692k(a)(3) provides, a plaintiff
bringing an action under the FDCPA is entitled to "the costs of
the action, together with a reasonable attorney's fee as
determined by the court." This entitlement may exist even where a
court awards no actual or "statutory" damages. See Savino v.
Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1998);
Emanuel, 870 F.2d at 809.
Defendants' offer of judgment was clear on its face, and stated
that it included costs. The inclusion of costs did not make the
offer ambiguous, since lawyers, above all, know the difference
between fees and costs. Because the FDCPA does not itself
contemplate attorney's fees as part of costs, see Chambers v.
Manning, 169 F.R.D. 5, 8 (D.Conn. 1996), the offer of judgment
in this case did not, on its face, cover attorney's fees.
Even were there some ambiguity in the language of the offer,
however, that ambiguity would be appropriately resolved against
the defendants. In Chambers, a FDCPA case in which litigants
disputed the inclusion of attorney's fees in a Rule 68 offer of
judgment, the court observed:
The latter approach [construing ambiguity against
the offeror] seems preferable because it forces a
defendant to be precise about the terms of his offer.
If a plaintiff rejects a Rule 68 offer and receives a
less favorable final judgment, she is liable for the
costs incurred after the offer's making. Fed.R.Civ.P.
68. Given this potential, a plaintiff should be able
to know the exact terms of an offer before accepting
or rejecting it. She should not be left to guess how
courts will interpret extrinsic evidence of what is,
and is not, included in the offer. Rather, a
defendant should state his intentions clearly, and
any failure to do so will be at his peril.
The same is suggested by ordinary contract
principles, under which ambiguous contract language
is construed against its drafter.
169 F.R.D. at 8 (citations omitted).
The offer was not withdrawn when the issue of fees was
allegedly raised on February 10, and was accepted on behalf of
Shapiro, who thereby became entitled to receive the $1,300.
Under the statute Shapiro is entitled to reasonable attorney's
fees. Since the maximum statutory award under the Act is $1,000,
Blockbuster and CPAI presumably intended that $300 of their offer
of judgment would be applied to compensate Fishbein. Regrettably,
the offer did not so state.
Fishbein affirms that he charges $175 an hour. There is no
basis in the record to doubt this affirmation, and this rate
would appear to be typical for this district. He opened a file,
prepared a simple, four-page complaint, and attended a pretrial
conference, tasks reasonably accomplished in three hours for an
attorney with "extensive experience in FDCPA litigation both in
filing individual actions and class actions." (Fishbein Aff. ¶ 6)
Accordingly, Fishbein is entitled to a fee of $525. Costs were
$150, and Shapiro has presumably received $150, leaving a
reasonable fee to be paid of $375. This fee is all the more
reasonable given the likelihood that Shapiro's current recovery
of attorney's fees is fortuitous windfall from a drafting error.
For the reasons set forth above, Shapiro is entitled to recover
$375 from defendants for attorneys' fees.
It is so ordered.
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