Norman Peck v. IMC Credit Services ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3187
NORMAN PECK,
Plaintiff-Appellant,
v.
IMC CREDIT SERVICES,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:18-cv-03143-SEB-TAB — Sarah Evans Barker, Judge.
____________________
SUBMITTED MAY 28, 2020* — DECIDED JUNE 5, 2020
____________________
Before EASTERBROOK, SYKES, and ST. EVE, Circuit Judges.
PER CURIAM. Norman Peck sued IMC Credit Services for
mailing him a letter to collect a debt that he insists he does not
owe, in violation of the Fair Debt Collection Practices Act,
* We have agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments,
and oral argument would not significantly aid the court. Fed. R. App. P.
34(a)(2)(C).
2 No. 19-3187
15 U.S.C. §§ 1692–1692p. The district court entered judgment
for Peck under Federal Rule of Civil Procedure 68 in the
amount of $1,101.00, “plus costs to be determined by the
Court.” Peck sought “costs” in the amount of $25,293.65, but
the district court did not award any. Because Peck requested
costs not contemplated by the federal rules and the relevant
statute, we affirm.
This suit arises from a letter that IMC, a debt collector,
mailed to Peck in 2017 on behalf of Medical Associates, LLC,
regarding a debt that Peck allegedly owed. The letter’s enve-
lope had a clear pane that revealed a barcode containing
Peck’s personal information. A year after receiving the letter,
Peck sued IMC for violating the Act in numerous ways, in-
cluding by revealing his personal information on the enve-
lope, see 15 U.S.C. § 1692f(8), and by failing to verify that Peck
owed the debt after he disputed it. See id. § 1692g(a)(4). Peck
sought a range of damages and the “costs of the action.”
IMC made an offer of judgment in the amount of “$1,101,
plus costs to be awarded by the court.” See FED. R. CIV. P. 68.
Peck accepted. In email correspondence, the parties then dis-
cussed the “costs” involved. Peck believed IMC’s offer of
“costs” included the damages he claimed under the Act, while
IMC explained that its offer accounted for $1,101 in statutory
damages with interest, plus the costs typically recoverable by
the prevailing party in civil litigation. Peck attached this cor-
respondence to a motion asking the district court to enter
judgment pursuant to Rule 68. In its response, IMC again
made clear that its offer extended to “taxable costs as a pre-
vailing party.” The district court concluded that there was no
meeting of the minds about the offer of judgment, specifically
No. 19-3187 3
noting that IMC offered only the costs recoverable under Fed-
eral Rule of Civil Procedure 54(d), whereas Peck believed that
“costs” would include the damages he sought. The court
therefore declined to enter judgment.
Peck, however, filed a “motion for interlocutory injunc-
tion,” insisting that he accepted IMC’s offer of judgment and
so, under Rule 68, the district court had no authority to “nul-
lify” the parties’ agreement. He stated that his “interpretation
of costs” was irrelevant to his acceptance of the offer of judg-
ment. The district court interpreted this as a motion to recon-
sider. The court then determined that because “the objective
manifestation of mutual assent” governs contract formation,
Peck had accepted the offer of judgment. It ordered the entry
of judgment consistent with the terms of IMC’s Rule 68 offer
(though the entry did not occur for several more months).
In the same order, the district court instructed Peck to file
a bill of costs, “limited to those contemplated by [Federal Rule
of Civil Procedure] 54(d), which are itemized in 28 U.S.C.
§ 1920.” When Peck filed his bill of costs, however, he de-
manded $24,137.50 (reimbursement for the hundreds of hours
Peck says he spent litigating this action) in “actual damage
costs,” see 15 U.S.C. § 1692k(a)(1), $156.15 in “costs-of-the-ac-
tion damage costs” (for his “mailing costs”), see id.
§ 1692k(a)(3), and $1,000 in “additional damage costs,” see
id. § 1692k(a)(2). He also demanded $47,425.02 in punitive
damages. Finding that none of Peck’s “costs” were recovera-
ble under 28 U.S.C. § 1920, the district court denied his bill of
costs. The same day (October 3, 2019), the district court en-
tered a separate final judgment order awarding Peck
$1,101.00.
4 No. 19-3187
On October 28, Peck filed a motion asking the court to “ar-
ticulate its … findings” under Federal Rule of Civil Procedure
52(b) and “amend its judgment accordingly.” He then filed a
notice of appeal on October 31. The district court denied
Peck’s Rule 52(b) motion on November 14. Peck then filed, on
November 22, a motion to alter or amend the judgment, see
FED. R. CIV. P. 59(e), which the district court denied on Decem-
ber 4. This court then ordered briefing on the appeal to pro-
ceed. Peck continued filing motions in the district court, in-
cluding motions for summary judgment, another motion for
a bill of costs, and a motion to reconsider, all of which the dis-
trict court has denied or declined to address because they
came after Peck had filed his notice of appeal. See Griggs v.
Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982); Wisconsin
Mut. Ins. Co. v. United States, 441 F.3d 502, 504 (7th Cir. 2006).
On appeal, Peck first argues that this court does not yet
have jurisdiction over this appeal because no final judgment
has been entered and many issues remain to be resolved. In
particular, Peck believes that the district court has not yet suf-
ficiently articulated a rationale for denying his requested
costs. He contends that the district court “prematurely for-
warded” his appeal to this court.
We have jurisdiction over this appeal. The district court
entered an order quantifying the award of costs (zero), which
was a final decision. Cf. McCarter v. Ret. Plan for Dist. Managers
of Am. Family Ins. Group, 540 F.3d 649, 652 (7th Cir. 2008) (dis-
tinguishing between final decision on merits and “final deci-
sion on attorneys’ fees (or costs),” which is final when award
is quantified). This final decision on costs was appealable sep-
arately from the merits. See Budinich v. Becton Dickinson & Co.,
No. 19-3187 5
486 U.S. 196, 200–01 (1988) (costs are “not generally treated as
part of the merits judgment”); McCarter, 540 F.3d at 652. And
even if we treated this as an appeal from the entry of judg-
ment, we would have jurisdiction because the notice of appeal
came after the district court entered a final judgment order,
see FED. R. CIV. P. 58(c)(2)(A), and the district court has ruled
on any motions that could affect appellate jurisdiction (those
under Rules 52(b) or 59(e)). See FED. RS. APP. P. 4(a)(4)(A)(ii),
(iv), 4(a)(4)(B)(i).
Peck next argues that the district court erred by failing to
award the “costs” he requested, which he contends are recov-
erable under 15 U.S.C. § 1692k(a). He insists that the judg-
ment of “$1,101.00, plus costs” includes anything that he
could recover under § 1692k(a) of the Act, and so the district
court should have awarded $24,137.50 in actual damages,
$1,000 in additional damages, and $156.15 in litigation ex-
penses. In support of this contention, Peck points to Marek v.
Chesny, 473 U.S. 1, 9 (1985), which states: “[T]he term ‘costs’
in Rule 68 was intended to refer to all costs properly awarda-
ble under the relevant substantive statute or other authority.
In other words, all costs properly awardable in an action are
to be considered within the scope of Rule 68 ‘costs.’”
Nothing in Marek, however, equates “costs” with “dam-
ages.” And damages are not part of the costs “properly
awardable under” § 1692k(a). The statute allows recovery of
“actual damage,” see 15 U.S.C. § 1692k(a)(1), and discretion-
ary “additional damages” not to exceed $1,000, see id.
§ 1692k(a)(2). A separate provision permits recovery of the
“costs of the action.” See id. § 1692k(a)(3). If “costs of the ac-
6 No. 19-3187
tion” included actual or statutory damages, the damages pro-
visions would be superfluous. See Yates v. United States,
135 S. Ct. 1074, 1084–85 (2015) (“We resist a reading [of a stat-
ute] that would render superfluous an entire provision
passed in proximity as part of the same Act.”). Further, noth-
ing in the Act permits recovery of punitive damages. See Ran-
dolph v. IMBS, Inc., 368 F.3d 726, 728 (7th Cir. 2004).
Without a special definition in the Act, the “costs” it con-
templates are simply those awardable under Federal Rule of
Civil Procedure 54(d), which “codifies a venerable presump-
tion that prevailing parties,” such as Peck, “are entitled to
costs.” Marx v. General Revenue Corp., 568 U.S. 371, 377 (2013).
“When permissive language is used in a statute regarding
costs the district court may, pursuant to Rule 54(d), exercise a
sound discretion relative to the allowance of costs.” Id. at 379
(quoting 6 J. Moore, Moore’s Federal Practice § 54.71[1], p. 54–
304 (2d ed. 1996)). A statute must set forth a standard for
awarding costs that is different from Rule 54(d)(1) to displace
the rule; section 1692k(a)(3) does not. Marx, 568 U.S. at 379–
80.
The “costs” recoverable under Rule 54(d) are enumerated
in 28 U.S.C. § 1920.† Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S.
† They are: “(1) Fees of the clerk and marshal; (2) Fees for printed or
electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses; (4) Fees for exem-
plification and the costs of making copies of any materials where the cop-
ies are necessarily obtained for use in the case; (5) Docket fees under sec-
tion 1923 of this title; and (6) Compensation of court appointed experts,
compensation of interpreters, and salaries, fees, expenses, and costs of spe-
cial interpretation services under section 1828 of this title.”
No. 19-3187 7
560, 565 (2012) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 437, 441 (1987)). They do not include any kind of
damages, nor the compensation Peck seeks for his time and
mailing expenses. Therefore, the district court correctly de-
nied Peck’s bill of costs.
AFFIRMED