Pending before the court is Defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. ECF No. 9. At issue is whether Defendants’ offer of judgment for the full amount of Plaintiffs statutory-damages but which limits costs and attorney’s fees as of the date of the offer of judgment renders Plaintiffs claim moot thus divesting the court of subject matter jurisdiction.
The motion is based on facts beyond those alleged in the pleadings and therefore presents a factual challenge. McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty.,
BACKGROUND
Attorney John F. Hayter and his law firm, John F. Hayter, P.A., (cоllectively “Defendants”) are engaged in the debt collection business. On June 15, 2012, Defendants sent a letter to Barry Lobianco (“Plaintiff’) to collect a debt that Plaintiff owed for rent on a residential apartment. Plaintiff contends that the language used in the letter violatеs the notice and dispute provisions of the Fair Debt Collections Practices Act (“Act”), Title 15, United States Code, Section 1692g(a)(4) and (b). Regarding notice, the letter stated: “if you dispute the debt, this office will obtain and provide to you verification of the debt or a copy of a judgment----” Complaint, Doc. 1 at ¶ 19. According to Plaintiff, the language was deficient under the notice provision in section 1692g(a)(4) оf the Act because it failed to notify Plaintiff “that a written dispute of the debt was necessary in order to require Defendants to providе verification of the Debt.” Id. at ¶ 24 (emphasis in original). Regarding the dispute provision, the letter contained the following language: “Paymеnt in full is hereby demanded within thirty (30) days after receipt of this letter. If you do not pay as demanded I will advise my client to file suit to collect. DO NOT EXPECT ANY FURTHER NOTICES.” Id. аt ¶ 19 (emphasis in original). According to Plaintiff, the threat in the letter violates the dispute provision in section 1692g(b) of the Act because the threat is designed to pressure a consumer to forgo the right to dispute the debt.
Plaintiff filed a class action suit against Defendants on Fеbruary 22, 2013. Plaintiff is suing to collect statutory damages for himself. He also seeks to represent a class of others who received similаr letters from Defendants in the past year. On March 13, 2013, before any motion to certify the class had been filed, Defendants served Plaintiff with аn offer of judgment in accordance with Federal Rule of Civil Procedure 68. The offer consents to the
DISCUSSION
The case or cоntroversy requirement of Article III of the Constitution prohibits federal courts from adjudicating issues in the abstract. Thus at the time of filing a lawsuit a рlaintiff is required to show that he has standing to bring the case by demonstrating that he has a real stake in the issues for the court to resolve. Sheely v. MRI Radiology Network, P.A.,
There is a split among the Courts of Appeal as to whether an unacceptеd offer of judgment that fully satisfies a plaintiffs claim will render the claim moot. The Eleventh Circuit Court of Appeals has not addressed this precise issue. In Zinni v. ER Solutions, Inc.,
In the ease at bar, the offer mаde by Defendants to Plaintiff came in the form of a Rule 68 offer of judgment. So the offer is not defective because it withheld entry of judgment. Instеad, Plaintiff argues that offer of judgment did not provide complete relief because it limited payment of attorney’s fees and costs to the date of the offer of judgment. Had Defendants’ offer of judgment simply stated that it included costs and attorney’s fees to be аwarded by the court, Plaintiff contends, the offer would have afforded complete relief. Being limited as it was, however, to the feеs and costs incurred up to the date of the offer, the offer did not afford complete relief.
In cases like this one where attorney fees are allowed to the prevailing party by federal statute, the compensable fees include time spent litigating both the entitlement to and amount of fees incurred; i.e. “fees for litigating fees.” Thompson v. Pharmacy Corp. of Am., Inc.,
CONCLUSION
Defendants’ offer of judgment was not sufficient to moot Plaintiffs claim because the offer of judgment excluded post-offer attorney’s fees that Plaintiff would otherwise be entitled to receive and therefore did not offer complete relief to Plaintiff.
ORDERED AND ADJUDGED: Defendants’ motion to dismiss, ECF No. 9, is denied.
Notes
. Decisions from the former Fifth Circuit decided on or before September 30, 1981 are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard,