Staples v. Wickesberg

122 F.R.D. 541, 14 Fed. R. Serv. 3d 245, 1988 U.S. Dist. LEXIS 12432, 1988 WL 117436
CourtDistrict Court, E.D. Wisconsin
DecidedNovember 7, 1988
DocketCiv. A. No. 87-C-799
StatusPublished
Cited by10 cases

This text of 122 F.R.D. 541 (Staples v. Wickesberg) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Staples v. Wickesberg, 122 F.R.D. 541, 14 Fed. R. Serv. 3d 245, 1988 U.S. Dist. LEXIS 12432, 1988 WL 117436 (E.D. Wis. 1988).

Opinion

DECISION AND ORDER

TERENCE T. EVANS, District Judge.

This is another chapter in the story of how a simple request for attorney’s fees in a civil rights case can turn into a journey through a tortuous legal maze. It is also another example of the time-consuming nature of these kinds of proceedings, a fact I cried a little about in Schirk v. Herlik, 689 F.Supp. 861 (E.D.Wis.1988).

Eugene Wright, the only successful plaintiff in this case, seeks an award of attorney’s fees in the amount of $6,020. The fee request represents 75.25 hours of work performed by his attorney, Diane L. Houk, at a rate of $80 per hour. Ms. Houk has provided time sheets and affidavits documenting her hours and demonstrating that $80 per hour is a reasonable fee in light of her experience, the Milwaukee legal market, and the circumstances of the case.

The defendant, Agnes Wickesberg, opposes an award of attorney’s fees. Alternatively, she argues that because Mr. Wright received only $1,000 in damages at trial, any award of attorney’s fees should be “substantially less” than the $6,020 requested. In addition, Mrs. Wickesberg points out that Mr. Wright made a settlement offer two months before trial asking for only $2,125 in attorney’s fees, along with $6,000 in damages. Finally, Mrs. Wickesberg says she offered to settle the case with Mr. Wright nineteen days before trial for $1,600 to $2,000. Whether this latter offer included attorney’s fees will be discussed at unfortunate length in the course of this opinion.

FACTS

Mr. Wright sued Mrs. Wickesberg for violating the Fair Housing Act of 1968, 42 U.S.C. § 3604, the Civil Rights Act of 1866, 42 U.S.C. § 1982, and the Wisconsin Fair Housing Act, § 101.22, Wis.Stat. He alleged that Mrs. Wickesberg refused to rent a property to him on account of his race. The other plaintiffs, Roosevelt Staples and Olive Bubenhein, made the same allegation. They had intended to occupy the property, whereas Mr. Wright was a “tester” seeking to determine whether Mrs. Wickesberg was complying with the law. He alleged [543]*543an “injury in precisely the form the [fair housing] statute was intended to guard against,” Havens Realty Corp. v. Coleman, 455 U.S. 363, 373, 102 S.Ct. 1114, 1121, 71 L.Ed.2d 214 (1982) (testers have standing to sue for damages under Fair Housing Act). Trial was set for August 16, 1988.

On June 23, 1988, Ms. Houk wrote to Mrs. Wickesberg’s attorney offering to settle Mr. Wright’s case for $6,000 in damages, $2,125 in attorney’s fees, and $100 in court costs. This offer was not accepted.

On July 28,1988, Mrs. Wickesberg’s lawyer, Reuben Peterson, Jr., sent copies of a single settlement offer to Ms. Houk and Paul Higginbotham, the attorney for the other plaintiffs. Mr. Peterson said Mrs. Wickesberg would “pay $8,000 to conclude this litigation and I hereby offer that amount to both of you. I am not quite certain how to divide that amount,” Mr. Peterson added, but “[i]t seems to me that Mr. Higginbotham’s clients should be entitled to 75 to 80 percent of the amount and Ms. Houk’s client to 20 to 25 percent. What is important is that the entire matter must be settled.” Mr. Peterson did not file his offer with the court. At the time of this offer, Ms. Houk had expended 29.3 hours on the case.

On August 1, 1988, Ms. Houk responded to Mr. Peterson by telling him that she and Mr. Higginbotham were rejecting the offer. She also advised Mr. Peterson that “Mr. Higginbotham and I are unable to negotiate a joint settlement with you as we represent different parties with different interests. Therefore, any future settlement offers should be forwarded to Mr. Higginbotham or myself regarding our specific clients and their claims.” Ms. Houk made a counteroffer on behalf of Mr. Wright to settle his case for $7,500, including attorney’s fees and court costs. The counteroffer was not accepted.

At the close of trial on August 18, 1988, the jury found that Mrs. Wickesberg had engaged in discrimination only as to Mr. Wright. The jury awarded him $1,000 in compensatory damages. As the prevailing party, he now seeks attorney’s fees under 42 U.S.C. § 1988 and § 101.22(7)(a), Wis. Stat. Because I do not think this is the kind of case where I should reject, in an exercise of my discretion, any award of attorney’s fees, I turn to Mrs. Wickesberg’s more specific objections.

DISCUSSION

I reject two of Mrs. Wickesberg’s arguments right off the bat. Mr. Wright’s offer of June 23 has no bearing on this matter because it was not accepted. And the fact that Mr. Wright ultimately won only $1,000 does not rule out an award of $6,020 in attorney’s fees. As the court of appeals for this circuit has said, “Once it is determined that civil rights claims of small cash value nevertheless have enough social value to warrant litigation, it follows that attorney’s fees awards will sometimes exceed the damages awards in such cases— and the Supreme Court therefore has held that the damage award is not a ceiling on the fee award.” Ustrak v. Fairman, 851 F.2d 983, 989 (7th Cir.1988) (citing City of Riverside v. Rivera, 477 U.S. 561, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986)).

In Ustrak, the appeals court awarded $21,100 in fees to an attorney in a civil rights suit where the plaintiff received only $1 in actual damages and $1,000 in punitive damages.1 In this case, Mr. Wright did not [544]*544receive punitive damages but, of course, any win in a housing discrimination case is important as it sends out a clear message that unequal treatment of renters or home buyers based on race will not be tolerated. As has been noted, “[r]egardless of the form of relief he actually obtains, a successful civil rights plaintiff often secures important social benefits that are not reflected in nominal or relatively small damages awards.” Riverside, 477 U.S. at 574, 106 S.Ct. at 2694 (plurality opinion).

Mrs. Wickesberg’s third argument—that Mr. Wright did not accept an offer that was greater than the jury’s verdict— presents a much tougher call and indeed a knotty conundrum. This argument, if it were fleshed out by Mrs. Wickesberg’s attorney, would go something like this: Mr. Peterson’s letter of July 28 constituted an “Offer of Judgment” under rule 68 of the Federal Rules of Civil Procedure. The offer was for $1,600 to $2,000, but Mr. Wright eventually won only $1,000. Therefore, Mr. Wright must pay any costs, including attorney’s fees, that he incurred after the making of the offer. In a case such as this one, where the underlying statutes define costs to include attorney’s fees, attorney’s fees are included as costs under rule 68. Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985).

Rule 68 provides in relevant part:

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Cite This Page — Counsel Stack

Bluebook (online)
122 F.R.D. 541, 14 Fed. R. Serv. 3d 245, 1988 U.S. Dist. LEXIS 12432, 1988 WL 117436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/staples-v-wickesberg-wied-1988.