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Larry Bosket v. Nco Financial Systems

September 17, 2012

LARRY BOSKET, PLAINTIFF,
v.
NCO FINANCIAL SYSTEMS, INC, DEFENDANT.



DECISION and ORDER

I. INTRODUCTION

Plaintiff Larry Bosket ("Plaintiff") commenced the instant action against Defendant NCO Financial Systems, Inc. ("Defendant") alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. Presently before the Court is Plaintiff's Motion for attorneys' fees pursuant to 15 U.S.C. § 1692k(a). Dkt. No. 11 ("Motion"). Defendant opposes the motion. Dkt. No. 13 ("Response").

II. BACKGROUND

On June 16, 2011, Plaintiff commenced the instant action asserting violations of the FDCPA. Dkt. No. 1. On August 1, 2011, Defendant filed an Answer and also served an Offer of Judgment pursuant to Fed. R. Civ. P. 68. Dkt. Nos. 5, 8-1. On August 15, 2011, Plaintiff filed a Notice of acceptance of the Offer of Judgment. Dkt. No. 8. On September 12, 2011, the Court entered Judgment against NCO "for damages in the total amount of $1,500 for damages incurred by plaintiff as a result of NCO's alleged violations of the Fair Debt Collection Practice Act . . . together with plaintiff's reasonable costs and attorneys' fees accrued through the date of service of the Offer of Judgment, in an amount to be determined by the court." Dkt. No. 10. On September 26, 2011, Plaintiff filed a Motion for attorneys' fees seeking fees of $5,692.50 and costs in the amount of $425.00. Mot. Defendant concedes that Plaintiff is entitled to attorneys' fees, but opposes the request on the ground that the amount claimed is excessive. See generally Response.

III. DISCUSSION

A. Fees Incurred After Filing the Offer of Judgment

Plaintiff seeks fees incurred in prosecuting this matter, including the instant Motion for attorneys' fees. See generally Mot. Defendant argues that, based on the language of the Offer of Judgment and the Judgment entered in this case, Plaintiff may not recover fees incurred after the date of service of the Offer of Judgment. See generally Response. Plaintiff responds that, in cases brought under fee-shifting statutes, time spent in litigating a petition for attorneys' fees should be included in the attorneys' fee award. See Dkt. No. 17 ("Reply") at 4-6. Plaintiff further argues that the language of the Offer of Judgment does not limit fees to those incurred prior to the date it was served because the word "through" can mean "past or beyond" and any ambiguity in the Offer of Judgment should be interpreted against Defendant, which drafted it. Id. at 5.

Rule 68 of the Federal Rules of Civil Procedure provides a means of encouraging settlement. Marek v. Chesny, 473 U.S. 1, 6 (1985). If an offer is made and accepted within the time provided in the Rule, the case is deemed settled and "[t]he clerk must then enter judgment." FED. R. CIV. P. 68.

When a settlement agreement is reached, the parties are bound by its plain terms, notwithstanding the existence of fee-shifting provisions in a statute. Marek, 473 U.S. 1. Thus:

[i]f an offer recites that costs are included or specifies an amount for costs, and the plaintiff accepts the offer, the judgment will necessarily include costs; if the offer does not state that costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include in its judgment an additional amount which in its discretion . . . it determines to be sufficient to cover the costs. In either case, however, the offer has allowed judgment to be entered against the defendant both for damages caused by the challenged conduct and for costs.

Marek, 473 U.S. at 6.

Here, the Offer of Judgment accepted by Plaintiff allows him to recover $1,500 in damages plus "an additional amount for Plaintiff's reasonable costs and attorney's fees accrued through the date of service of this Offer of Judgment either: 1) as agreed to by counsel for the parties; or 2) in the event counsel cannot agree, as determined by the Court upon application by Plaintiff's counsel."*fn1 Dkt. No. 8-1 ¶ 2. While Plaintiff correctly argues that the word "through" can sometimes mean "past or beyond" (e.g., as in, you drive through the tunnel or you drive through the night), when read in context of the Offer of Judgment, it is clear that the word means "to and including." RANDOM HOUSE DICT. OF THE

ENGLISH LANGUAGE 1480 (1979); see also Oxford English Dictionary Online, available at http://www.oed.com/view/Entry/201386?rskey=rZFEOW&result=6&isAdvanced=false#eid (accessed September 11, 2012).

This conclusion is supported by the fact that the Offer of Judgment and Judgment speak to reasonable costs and attorney's fees "accrued" through the date of service of the Offer of Judgment. Dkt. Nos. 8-1, 10. By using the past tense of the word "accrue," the Offer of Judgment was referencing costs and fees that were incurred as of the date specified in the Offer of Judgment -- that is the date it was served. If the Offer of Judgment intended to include costs and fees beyond that date, it would have required the use of the future tense of the word "accrue" or otherwise not provided a temporal limitation. Moreover, the Offer of Judgment used this temporally limiting language while expressly acknowledging that additional attorney time would be involved in ...


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