of refund under Magnuson-Moss, it would be inappropriate to grant
the equitable relief of rescission under the Illinois Commercial
Plaintiff's motion to amend the judgment will be denied.
Fleetwood's and Crystal's Motion for Costs and Attorney Fees
Fleetwood and Crystal Valley, who were jointly represented by
the same counsel throughout this litigation, petition for costs
and attorney fees. Crystal Valley primarily relies upon
Fed.R.Civ.P. 54. Fleetwood relies on an offer of judgment that
plaintiff did not accept. See Fed.R.Civ.P. 68. On November 19,
1999, Fleetwood and Crystal Valley served a single, joint offer
of judgment which stated the following: "Defendants, Fleetwood
Motor Homes of Indiana, Inc. (improperly sued as "Fleetwood Motor
Homes") and Crystal Valley RV, Inc., hereby extend to the
plaintiff an offer of judgment in the amount of $10,001.00,
together with costs accrued to date, under Rule 68, FEDERAL RULES
OF CIVIL PROCEDURE." Plaintiff did not accept the offer.
Under Rule 68, "[i]f the judgment finally obtained by the
offeree is not more favorable than the offer, the offeree must
pay the costs incurred after the making of the offer." Fleetwood
contends that its offer of judgment was more favorable than the
$5,000.00 verdict upon which judgment was entered as against
Fleetwood. The burden is on Fleetwood to show that its offer was
more favorable. Gavoni v. Dobbs House, Inc., 164 F.3d 1071,
1075-76 (7th Cir. 1999). The burden is on the offeror to make a
clear and precise offer that will be readily comparable to any
judgment that may be obtained. See id. at 1076-78. "[A]
defendant should state his intentions clearly, and any failure to
do so will be at his peril." Id. at 1076 (quoting Chambers v.
Manning, 169 F.R.D. 5, 8 (D.Conn. 1996)). In determining the
meaning of the offer, the court is to look to the language of the
offer and not consider possible extrinsic evidence. Gavoni, 164
F.3d at 1076. Because the offer was drafted by Fleetwood, any
ambiguities are to be construed against it. Id. at 1076 n. 1;
Webb v. James, 147 F.3d 617, 623 (7th Cir. 1998).
Plaintiff contends the offer should be construed as meaning a
total of $10,001.00, with nothing additional being offered for
costs and/or attorney fees. Plaintiff represents that, up to
November 19, 1999, his costs and attorney fees totaled
$19,379.50.*fn9 Since Magnuson-Moss provides for an award of
attorney fees to a prevailing plaintiff, plaintiff contends that
the proper number to compare to the $10,001.00 offer is the costs
and fees plus the $5,000.00 verdict, which is a total of
$24,379.50. Since the offer was less than this, plaintiff
contends that the cost-shifting provision of Rule 68 does not
It is clear that the offer of judgment was for more than just
$10,001.00. The offer states "$10,001.00, together with costs
accrued to date." This is a clear statement that costs were to be
in addition to the $10,001.00, not that the $10,001.00 already
included costs. Jolly v. Coughlin, 1999 WL 20895 *4 (S.D.N Y
Jan. 19, 1999). See, e.g., Fisher v. Kelly, 105 F.3d 350, 352
(7th Cir. 1997). The offer of judgment covered whatever costs had
accrued up to November 19.
When the term "costs" is used in an offer of judgment, it is to
be read as including all amounts awardable as "costs" under the
applicable statute. Marek v. Chesny, 473 U.S. 1, 9, 105 S.Ct.
3012, 87 L.Ed.2d 1 (1985); Fisher, 105 F.3d at 352. The
fee-shifting provision of Magnuson-Moss
provides: "[i]f a consumer finally prevails . . ., he may be
allowed by the court to recover as part of the judgment a sum
equal to the aggregate amount of cost and expenses (including
attorneys' fees based on actual time expended) determined by the
court to have been reasonably incurred by the plaintiff for or in
connection with the commencement and prosecution of such action,
unless the court in its discretion shall determine that such an
award of attorneys' fees would be inappropriate."
15 U.S.C. § 2310(d)(2). In Marek, the court looked to the "plain meaning"
of Rule 68 and 42 U.S.C. § 1988, which was the fee-shifting
provision at issue in that case. 473 U.S. at 9-10, 105 S.Ct.
3012. The dissent categorized fee-shifting statutes as falling
into three categories. See id. at 23-24 & n. 17, 43-51, 105
S.Ct. 3012 (Brennan, J., dissenting). One category was those
statutes that refer to attorney fees "as part of the costs." See
id. at 43, 44-48, 105 S.Ct. 3012. The second category was those
statutes that do not refer to attorney fees as part of costs.
See id. at 43-44, 105 S.Ct. 3012; 48-51. The last category is
those statutes in which the plain meaning is not clear as to
whether attorney fees are costs. See id. at 23 n. 17, 44, 105
S.Ct. 3012; 51. The last category of statutes generally provide
for an award of "costs and expenses, including attorney's fees."
Id. at 44, 105 S.Ct. 3012. Justice Brennan included
Magnuson-Moss in the last category. See id. at 51, 105 S.Ct.
3012. "It is unclear how the `plain language' of these provisions
interacts with Rule 68. If `including attorney's fees' is read as
referring at least in part to `costs,' fees awards under these
statutes are subject to Rule 68. If `including attorney's fees'
is more naturally read as modifying only the preceding word,
`expenses,' fees awards under these statutes are not governed by
Rule 68." Id. at 23 n. 17, 105 S.Ct. 3012. See also id. at
44, 105 S.Ct. 3012.
Section 2310(d)(2) is slightly different from the language
specifically identified in the Marek dissent in that §
2310(d)(2) places "including attorneys' fees" in parentheses, not
after a comma. The "including attorneys' fees" phrase, however,
still follows immediately after "costs and expenses." In Utah
International Inc. v. Department of Interior, 643 F. Supp. 810
(D.Utah 1986), the defendant argued that the court's local rule
regarding the time limit for filing a motion to tax costs should
apply to the plaintiff's motion for attorney fees because,
according to the defendant, such fees were costs under the
applicable fee-shifting statute. The fee-shifting provision at
issue in that case was § 525(e) of the Surface Mining Control and
Reclamation Act ("SMRCA"), 30 U.S.C. § 1275(e).*fn10 Section
525(e) provides: "Whenever an order is issued under this section,
or as a result of any administrative proceeding under this
chapter, at the request of any person, a sum equal to the
aggregate amount of all costs and expenses (including attorney
fees) as determined by the Secretary to have been reasonably
incurred by such person for or in connection with his
participation in such proceedings, including any judicial review
of agency actions, may be assessed against either party as the
court, resulting from judicial review or the Secretary, resulting
from administrative proceedings, deems proper." Construing its
own local rule, the Utah International court held that "costs,"
as used in the local rule, referred only to statutory costs that
may be taxed routinely by the clerk of the court. Utah
International, 643 F. Supp. at 815-16. See 28 U.S.C. § 1920;
Fed.R.Civ.P. 54(d)(1). Alternatively, even applying the Rule 68
analysis of Marek, the court construed § 525(e) as not defining
attorney fees as being a type of cost under the statute.
. . Section 525(e) of SMRCA, unlike
42 U.S.C. § 1988, does not define "costs" to include attorney's
fees. Rather, Section
525(e) authorizes an award of "all costs and expenses
(including attorney fees)." 30 U.S.C. § 1275(e). Not
only does Section 525(e) refer to expenses separately
from "costs," the reference to "attorney's [sic] fee"
is placed adjacent to the term "expenses" rather than
the term "costs." According to the statutory
construction doctrine of last antecedent, such a
placement indicates a legislative intention that
"attorney's [sic] fees" be construed as "expenses,"
rather than as "costs." See Azure v. Morton,
514 F.2d 897, 900 (9th Cir. 1975). Even for purposes of
Fed.R.Civ.P. 68, therefore, "costs" does not
necessarily include attorney's fees in an action
brought pursuant to Section 525(e) of SMRCA.
Utah International, 643 F. Supp. at 815.
In pertinent part, the language of § 525(e) is identical to the
language contained in § 2310(d)(2). This court agrees with Utah
International that the plain meaning of such statutory language
is that attorney fees are not defined as "costs." Instead, they
are defined as "expenses." Therefore, the offer of judgment in
the present case should be construed as offering $10,001.00 plus
accrued statutory costs, but no additional amount for accrued
attorney fees. Under that narrow view, the offer of judgment did
not exceed the judgment plaintiff actually obtained, $5,000.00,
plus accrued costs, plus more than $5,001.00 of accrued attorney
But there is another slant to consider. Where the offer of
judgment does not expressly state that attorney fees are already
included in the sum offered and the offer does not state that
attorney fees are to be an addition to the sum offered, in other
words when the offer of judgment is silent as to attorney fees,
the offeree is still entitled to attorney fees to the extent
provided by statute. Webb, 147 F.3d at 617. Had plaintiff
accepted the offer of judgment, he could have petitioned for
attorney fees as well. He would still have had to show that the
settlement constituted his prevailing in the litigation, see
Fisher, 105 F.3d at 352-53 (where a settlement that is accepted
is a technical or de minimis recovery, plaintiff is not a
prevailing party), and that the fees requested were reasonable in
light of the result. It would appear, though, that a fee award
would have been appropriate. If so, the judgment offered would
have resulted in plaintiff receiving $10,001.00, plus statutory
costs, plus accrued attorney fees and expenses. Overall, that
would have been more favorable than the $5,000.00 judgment
actually obtained, plus costs, attorney fees, and expenses.
The preceding discussion, however, ignores an additional
ambiguity that is contained in the offer of judgment. That
ambiguity is fatal to Fleetwood's contention that it is entitled
to cost-shifting under Rule 68. The $5,000.00 judgment, plus any
costs and fees that are to be awarded, are against Fleetwood
alone. Fleetwood, however, is not the lone offeror on the offer
of judgment. The offer was for settlement of the claims of both
Fleetwood and Crystal Valley. Defendants failed to specify how
much was being offered from each defendant. Without knowing how
much was being offered from each defendant, there is no precise
number to compare with the $5,000.00 judgment that was entered
against Fleetwood alone. There being no comparable number, the
cost-shifting provision of Rule 68 cannot be applied. See
Johnston v. Penrod Drilling Co. 803 F.2d 867, 870 (5th Cir.
1986); Gavoni, 164 F.3d at 1076-77. This is not a mere
technical error. If it were to be assumed that each defendant was
to be apportioned half the offer, then Fleetwood's individual
offer would have exceeded the jury's verdict by $50. But such an
assumption is not consistent with the circumstances. Crystal
Valley was potentially liable for problems with both the chassis
and the coach. Fleetwood could only be liable for problems with
the coach. Therefore, if speculation were appropriate, the
reasonable assumption would be to apportion Fleetwood less than
half of the offered amount, in
which case Fleetwood's offer would have been less than the
judgment obtained following trial.*fn11 In any event, because
Fleetwood failed to satisfy its burden of making a sufficiently
precise offer, Rule 68 cannot be applied. Gavoni, 164 F.3d at
Because Fleetwood has not shown that its offer of judgment was
more favorable than the judgment finally obtained, plaintiff is
not precluded from seeking post-offer costs and fees and
Fleetwood is not entitled to costs or fees.*fn12
Crystal Valley prevailed as to the claims against it. Citing
only to Fed. R.Civ.P. 54 and without quite explaining why,
Crystal Valley contends it is entitled to attorney fees. The
attorney fee provision of Magnuson-Moss is limited to awarding
fees to prevailing consumers. 15 U.S.C. § 2310(d)(2); State Farm
Fire & Casualty Co. v. Miller Electric Co., 231 Ill. App.3d 355,
172 Ill.Dec. 890, 596 N.E.2d 169, 171-72 (1992); Hanson v.
Signer Motor, Inc., 105 Or. App. 74, 803 P.2d 1207, 1211 (1990);
Black v. Don Schmid Motor, Inc., 232 Kan. 458, 657 P.2d 517,
531-32 (1983). Therefore, Crystal Valley cannot be entitled to
fees under Magnuson-Moss. Rule 68 also cannot be a basis for an
award of attorney fees to Crystal Valley. Since plaintiff was
unsuccessful in obtaining a judgment against Crystal Valley, Rule
68 is inapplicable to Crystal Valley's request for costs and
fees. Poteete v. Capital Engineering, Inc., 185 F.3d 804, 806
(7th Cir. 1999); Amati v. City of Woodstock, 176 F.3d 952, 957
(7th Cir.), cert. denied, ___ U.S. ___, 120 S.Ct. 445, 145
L.Ed.2d 362 (1999). This is true even though a judgment was
obtained against another defendant. Louisiana Power & Light Co.
v. Kellstrom, 50 F.3d 319, 334 (5th Cir.), cert. denied,
516 U.S. 862, 116 S.Ct. 173, 133 L.Ed.2d 113 (1995). Even if Rule 68
did apply to Crystal Valley, costs under Rule 68 would not
include attorneys fees of a Magnuson-Moss defendant. Last, there
is no contention by Crystal Valley that it is entitled to fees
because plaintiff's claims against it were frivolous. See
Fed.R.Civ.P. 11. Crystal Valley will not be awarded fees.
As a prevailing party, Crystal Valley would be entitled to its
statutory costs. Crystal Valley, however, was represented by the
same attorneys that represented Fleetwood, which is not entitled
to its costs. Crystal Valley makes no attempt to apportion costs
between it and Fleetwood. Crystal Valley's and Fleetwood's joint
motion requests $1,141.52 in costs. Although Crystal Valley would
be entitled to all its costs, the claimed costs are all
represented to have been incurred subsequent to the November 19,
1999 offer of judgment. Moreover, the bill of costs that is
submitted (Exhibit B to the joint motion) is a bill of costs on
behalf of Fleetwood, not Crystal Valley. Since no timely bill of
costs was submitted, Crystal Valley could be denied all costs.
Plaintiff, however, concedes that he and the three defendants
apportioned a bill for duplication services for trial. Plaintiff
concedes that the share paid by Crystal Valley was $258.40.
also concedes that Crystal Valley paid $138.09 as its share of
court reporting costs. Since plaintiff concedes both that these
amounts were paid by Crystal Valley and that they are compensable
costs, Crystal Valley will be awarded $396.49 in costs.
Plaintiff's Motion for Attorney Fees and Costs
Plaintiff requests $46,342.55 in attorney fees and costs as
against Fleetwood. This represents 187.4 attorney hours for a
lodestar of $30,450.50, with a multiplier of 1.5 that brings the
fee amount to $45,675.75. Costs total $666.80. Fleetwood does not
dispute that the hours claimed and the rates used are
reasonable.*fn13 Fleetwood, however, opposes the use of a
multiplier. Fleetwood also argues that the amount awarded should
be reduced in light of the amount of the judgment and to take
into account the other claims upon which plaintiff was not
In Skelton v. General Motors Corp., 860 F.2d 250 (7th Cir.
1988), cert. denied, 493 U.S. 810, 110 S.Ct. 53, 107 L.Ed.2d 22
(1989), the Seventh Circuit considered a fee award in a
Magnuson-Moss case that had been settled. The Seventh Circuit
held that common fund rules applied, not § 2310(d)(2). Id. at
255-56. In dictum, the Seventh Circuit concluded that, even if
§ 2310(d)(2) applied, it would not preclude the use of a
multiplier. See id. at 256-57. The Seventh Circuit quoted the
only legislative history regarding the Magnuson-Moss fee
provision, which includes these remarks: "It should be noted that
an attorney's fee is to be based upon actual time expended rather
than being tied to any percentage of the recovery. This
requirement is designed to make it economically feasible to
pursue consumer rights involving inexpensive consumer products."
Id. at 256 n. 7 (quoting S.Rep. No. 986, 1st Sess. 21, 117
Cong. Rec. 39614 (1971)). Discussing the statutory language
"including attorneys' fees based on actual time expended," the
Seventh Circuit reasoned:
In our view, these words do not preclude a risk
multiplier. Instead, they indicate Congress' intent
that attorneys' fees be computed on an hourly basis
"rather than being tied to any percentage of
recovery." S.Rep. No. 986, 92d Cong., 1st Sess. 21,
117 Cong. Rec. 39614 (1971). Because a risk enhancer
is applicable to the lodestar-it multiplies the
lodestar by a number representing the probability of
loss-it is based on the number of hours the attorneys
worked and not the size of plaintiffs' recovery. Thus
a risk multiplier is "based on actual time expended."
Skelton, 860 F.2d at 257.
Finding this dictum persuasive, the "based on actual time
expended" language of § 2310(d)(2) does not preclude the use of a
multiplier. However, case law subsequent to Skelton holds that
it is inappropriate to apply a multiplier under any federal
fee-shifting statute. City of Burlington v. Dague,
505 U.S. 557, 567, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); Barrow v.
Falck, 977 F.2d 1100, 1105 (7th Cir. 1992); Cook v. Niedert,
142 F.3d 1004, 1014 (7th Cir. 1998). Therefore, plaintiff cannot
be entitled to a fee multiplier in the present case. Messana v.
Mercedes-Benz of North America, Inc., 2000 WL 988163 *3
(N.D.Ill. July 18, 2000).
As previously indicated, the statute provides that fee awards
are to be based on time actually expended and legislative history
supports that the fee award is not to
be tied to a percentage of the recovery. Therefore, as long as
the time expended was reasonable, it would be inappropriate to
reduce the fee award because it might be considered
disproportionate to the $5,000.00 in damages that plaintiff
actually recovered. No reduction will be made solely based on the
amount of damages plaintiff obtained.
Separate from consideration of the amount of damages obtained,
the hours for which plaintiff seeks compensation include hours
that were expended on claims made against Crystal Valley and
Ford. They also include hours expended on the Count II implied
warranty claim against Fleetwood that was dismissed prior to
trial, see Fleetwood I, 1999 WL 999784 at *1, and hours
expended on the unsuccessful attempt to obtain refund and
rescission relief. Fleetwood should not be required to compensate
plaintiff for attorney time devoted to claims against other
defendants and unsuccessful claims against Fleetwood itself.
The basic rule is that fees should be awarded for any work that
would have had to be done even if the unsuccessful claims had not
been pursued. See Estate of Borst v. O'Brien, 979 F.2d 511, 516
(7th Cir. 1992); Ustrak v. Fairman, 851 F.2d 983, 988 (7th Cir.
1988). This recognizes that much of what an attorney does is
related to the case as a whole, not just specific issues or
claims. See id. Consistent with this principle, it is
appropriate to deny fees for work on unsuccessful motions that
did not otherwise advance the case and that was work that would
not have been necessary if the party had pursued successful
avenues. See Sands v. Runyon, 28 F.3d 1323, 1333 (2d Cir. 1994)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct.
1933, 76 L.Ed.2d 40 (1983)) ("The unreasonable expenditure of
time includes `hours that are excessive, redundant, or otherwise
unnecessary.'"). See also Coulter v. State of Tennessee,
805 F.2d 146, 151 (6th Cir. 1986), cert. denied, 482 U.S. 914, 107
S.Ct. 3186, 96 L.Ed.2d 674 (1987); Duke v. Uniroyal, Inc.,
928 F.2d 1413, 1425 (4th Cir.), cert. denied, 502 U.S. 963, 112
S.Ct. 429, 116 L.Ed.2d 449 (1991); Castle v. Bentsen,
872 F. Supp. 1062, 1067 (D.D.C. 1995); General Electro Music Corp. v.
Samick Music Corp., 1994 WL 87445 *2 (N.D.Ill. March 17, 1994);
Bennett v. Central Telephone Co. of Illinois, 619 F. Supp. 640,
646-47 (N.D.Ill. 1985). The award may be adjusted "either by
identifying the specific hours that should be eliminated or by
simply reducing the overall award to reflect the plaintiff's
limited success." Spellan v. Board of Education for District
111, 59 F.3d 642, 646 (7th Cir. 1995) (quoting Illinois Welfare
Rights Organization v. Miller, 723 F.2d 564, 567 (7th Cir.
Much of the discovery and evidence in this case related to all
claims. However, most of the discovery and evidence regarding
problems with the chassis would have been unnecessary if the case
had been limited to the express warranty claim against
Fleetwood.*fn15 It is unknown how much extra time was devoted to
discovery concerning the chassis. Additional counts of the
complaint would not have had to have been drafted, but drafting
the complaint took only a limited amount of time.*fn16 If the
other claims had not been included in the complaint, plaintiff
would not have had to respond to summary judgment because
Fleetwood did not move for summary judgment on the written
warranty claim. See Fleetwood I, 1999 WL 999784 at *1. However,
only 5.2 hours of time are claimed for responding to the summary
judgment motion. Selecting the jury and presenting the evidence
in this case took less than two full trial days. The trial would
not have been substantially shorter
without the additional claims. Some parts of the pretrial order
would have been unnecessary without the additional claims, but,
given counsel's efficient work, the number of hours may not be
large. The fee petition includes minimal hours for work on the
posttrial motions that are related to the unsuccessful
As the preceding discussion indicates, the amount of additional
time that was expended because of the additional claims cannot be
precisely determined. However, it is clear that it is well less
than half the time that plaintiff's counsel worked on this case
and likely one-third of the time or less. Perhaps it is somewhere
between 20% and 40% of the time expended by counsel. Since the
fees claimed are otherwise kept to a minimum by the efficient
manner in which plaintiff's counsel worked this case, doubt
should be resolved in plaintiff's favor. The lodestar will be
reduced by 25%. Plaintiff will be awarded $22,837.88 in attorney
Plaintiff seeks only two items of costs. The $150.00 filing fee
will be fully reimbursed since he would have had to pay that
amount even if the complaint had contained only one count.
Plaintiff also seeks reimbursement for his $516.80 share of the
cost of duplicating trial exhibits. There were not very many
exhibits that concerned only the chassis or another defendant.
The duplication costs will be reduced by 10%. Plaintiff will be
awarded $615.12 in costs.
IT IS THEREFORE ORDERED that:
(1) Defendant Fleetwood's motion for judgment as a matter of
law [107-1] is denied.
(2) Plaintiff's motion to amend the judgment [103-1] is denied.
(3) Defendant Fleetwood's motion for costs [113-1] and attorney
fees [113-2] is denied. Defendant Crystal Valley's motion for
costs [113-1] is granted in part and denied in part. Defendant
Crystal Valley's motion for attorney fees [113-2] is denied. The
Clerk of the Court is directed to enter judgment in favor of
defendant Crystal Valley RV, Inc. and against plaintiff in the
amount of $396.49 in costs.
(4) Plaintiff's motion for attorney fees and costs  is
granted in part and denied in part. The Clerk of the Court is
directed to enter judgment in favor of plaintiff and against
defendant Fleetwood Motor Homes in the amount of $23,453.00,
representing $22,837.88 in attorney fees and $615.12 in costs.