Deicher v. City of Evansville, Wis.

Decision Date19 September 2008
Docket NumberNo. 07-2092.,07-2092.
Citation545 F.3d 537
PartiesDavid DEICHER and Mary Mezera, Plaintiffs-Appellants, v. CITY OF EVANSVILLE, WISCONSIN, Christopher Jones, individually and in his official capacity as an employee of the City of Evansville Police Department, and Community Insurance Corporation, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Betty Eberle (argued), Miner, Barnhill & Galland, Richard M. Burnham, Neider & Boucher, Madison, WI, for Plaintiffs-Appellants.

Mark B. Hazelbaker (argued), Hazelbaker & Russell, Madison, WI, for Defendants-Appellees.

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Jimmy Reiners called the police department in Evansville, Wisconsin, claiming that he needed Mary Mezera's address in order to serve papers on her regarding property that they jointly owned. Officer Christopher Jones disclosed Mezera's address to Reiners who, as it turns out, is her abusive ex-husband against whom she had a restraining order. Mezera and her husband, David Deicher, sued the City of Evansville, Wisconsin, Officer Jones, and the City's insurer, Community Insurance Corporation, alleging that Officer Jones violated the Driver's Privacy Protection Act ("DPPA") when he disclosed Mezera's address. After a jury verdict in the plaintiffs' favor, the jury awarded $25,000 in damages.

The plaintiffs appeal, contending that the district court erred when it answered a question from the jury by providing the filing date of the complaint, which was not in evidence, but not the Notice of Claim, a properly admitted exhibit filed prior to the complaint that indicated the plaintiffs' intent to file suit. We find that the district court properly took judicial notice of the complaint filing date, but because there is a reasonable possibility that this date confused the jury, the court erred by failing to provide the jury with the Notice of Claim.

The plaintiffs also object to the district court's calculation of the attorneys' fees, maintaining that the court committed error by limiting the attorneys' fees to the amount won at trial; however, since a new trial on damages is warranted, we need not reach this issue. Therefore, we reverse the judgment and remand for a new trial on damages and a new determination of attorneys' fees.


Mary Mezera divorced her then-husband Jimmy Reiners after years of physical and psychological abuse. On October 1, 2005, Mezera and her new husband, David Deicher, left their home in Evansville Wisconsin, and moved to a new location in Beaver Dam, Wisconsin, which they kept secret from Reiners. On February 2, 2006, Reiners called the Evansville Police Department looking for Mezera's home address, allegedly for the purpose of obtaining past due mortgage payments on property that he jointly owned with Mezera. Officer Jones placed Reiners on hold, obtained the plaintiffs' new address from the State of Wisconsin motor vehicle records, and provided it to Reiners. He claims that he provided the address after doing a brief check of Wisconsin's civil litigation database, but this database also contained Reiners's and Mezera's divorce decree.

Reiners then attempted to contact the plaintiffs by leaving a note in their mailbox. Mezera testified that following the disclosure of her address, she received a threatening phone call from Reiners; that she came home on the day of Reiners's birthday to find a table overturned outside of her home; and that she lived in constant fear that Reiners would return to harm her, Deicher, or their animals. The plaintiffs complained to the Evansville Police Department, which began an investigation. The Department concluded that Officer Jones made a serious error by disclosing the plaintiffs' address and he was reprimanded.

On April 22, 2006, the plaintiffs served a letter on the Evansville Police Department entitled "Notice of Claim," which informed the Department that the plaintiffs intended to file a lawsuit. The plaintiffs filed suit on June 30, 2006 against Officer Jones, the City of Evansville, and its insurer for violating the DPPA. That statute prohibits anyone from obtaining or disclosing information from motor vehicle records, subject to certain exceptions. See 18 U.S.C. § 2724(a).

At trial, the plaintiffs argued that Officer Jones falsified his report regarding the incident with Reiners to provide a potential defense to the plaintiffs' DPPA claim. There is an exemption to DPPA liability if the information was given to a third party for "use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court." 18 U.S.C § 2721(b)(4).

Officer Jones's report, which he claimed to have prepared a few days after he disclosed the plaintiffs' address, stated that the plaintiffs' address was provided to Reiners for "service of process" of documents relating to the foreclosure of a trailer that Mezera and Reiners owned during their marriage. The report further states that Officer Jones had run Reiners's name through a federal law enforcement database before giving out the plaintiffs' address. The plaintiffs claim, however, that this information was entered into the computer system months after the incident, specifically after the Department received the plaintiffs' Notice of Claim indicating that they planned to file suit over the DPPA violation.

At trial, the plaintiffs maintained that the Police Department initiated an extensive coverup of this incident. Officer Jones testified that he ran a background check on Reiners through a federal law enforcement database prior to disclosing the plaintiffs' address, which revealed no criminal background. There was no record in the system, however, of Officer Jones ever accessing state or federal records on February 2, 2006. In addition, the Chief of the Evansville Police Department acknowledged that he wrote a letter to the manager of the federal law enforcement database asking whether Officer Jones conducted the requisite background check on Reiners and received a response that Officer Jones had never run Reiners's name through the federal database. Although Officer Jones was reprimanded for disclosing the plaintiffs' address, on cross-examination the Chief admitted that Officer Jones was not disciplined for stating in his official police report that he had run Reiners through the federal database, nor was the report ever corrected to reflect that the federal background check had never been conducted.

Officer Jones also testified that he ran a background check on Reiners through various Wisconsin databases prior to disclosing the plaintiffs' address, but this information was not in his report and the records from the database showed that Reiners's name was run days after he contacted Officer Jones. The Wisconsin databases also disclosed that Mezera had a restraining order against Reiners, although Officer Jones denied under oath having seen the order. Had he actually run the background check, the plaintiffs contend, Officer Jones would have discovered that Reiners had a violent history and a restraining order against him that would have alerted Officer Jones not to provide Reiners with the plaintiffs' address. Furthermore, the plaintiffs argue that Reiners never mentioned anything about "serving papers" in his call with police, undermining the truthfulness of Officer Jones's report.

After a one-day trial on liability, the jury found that Officer Jones provided the plaintiffs' address to Reiners in violation of the DPPA and returned a verdict in their favor. During the trial to determine damages, the jury sent a question to the court asking for the date the case was filed. That date had not been entered into evidence. Both the parties objected, the defendants because they were not sure why the jury needed the date and the plaintiffs because they believed that what the jury actually wanted to know was the date when the Notice of Claim had been served on the defendants, not the date the complaint had been filed. The district court provided the date the case had been filed, commenting: "Over the objection of counsel, the Court is going to provide this very meaningful piece of information to the jury. And I'll tell them also the sun rises in the east and sets in the West [sic] if they want to know."

The jury awarded Mezera $14,500 and Deicher $1,000 in compensatory damages. The latter was increased upon the plaintiffs' motion to the statutory minimum of $5,000. The jury also awarded the plaintiffs $5,500 in punitive damages, for a total damages award of $25,000. These amounts were substantially less than the amounts that the plaintiffs asked for at trial, where they contended that they suffered severe emotional trauma after learning that Reiners knew where they lived.

The plaintiffs moved for a new trial based on the district court's communication to the jury of information outside the record, and they maintained that the punitive damages award was grossly inadequate. They also sought attorneys' fees under the DPPA, 18 U.S.C. § 2724(b), seeking the lodestar of $192,062.50 incurred in litigating their case. The district court first denied $50,345 of the fee request, stating that certain billed hours were duplicative, excessive and/or unnecessary. Rather than awarding the $141,717.50 remaining after this reduction, however, the court then limited the fee award to $25,000 on the rationale that the attorneys' fees should not exceed the amount the jury awarded to the plaintiffs in damages.

The plaintiffs' counsel then moved for an additional $13,276 in fees for litigating the fee award. The district court awarded one-eighth of this...

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