Opinion
Civil Action 17 Civ. 6850 (LTS) (SLC)
07-28-2021
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Plaintiff, v. EQUITAS INSURANCE LIMITED, Defendant.
REPORT AND RECOMMENDATION
SARAH L. CAVE, United States Magistrate Judge.
TO THE HONORABLE LAURA TAYLOR SWAIN, Chief United States District Judge:
I. INTRODUCTION
Plaintiff The Insurance Company of the State of Pennsylvania (“ICSOP”), having succeeded in obtaining an $8.4 million judgment for breach of reinsurance policies against Defendant Equitas Insurance Limited (“EIL”), now moves for an award of its attorneys' fees and costs based on ICSOP's status as a prevailing party under English law. (ECF No. 76 (the “Motion”)). EIL argues that New York, not English, law applies and does not entitle ICSOP to attorneys' fees and costs. (ECF No. 80).
For the reasons set forth below, I respectfully recommend that the Motion be DENIED.
II. BACKGROUND
A. Factual Background
The Honorable Laura Taylor Swain summarized the detailed factual background of this dispute in her Memorandum Opinion and Order dated July 16, 2020, in which she granted ICSOP's motion for summary judgment and denied EIL's cross motion for summary judgment. (ECF No. 62 (the “MSJ Order”)). The Court incorporates that summary and sets forth only those facts pertinent to the Motion.
ICSOP is an Illinois insurance company domiciled in New York and wholly owned by American International Group (“AIG”), and EIL is a corporation registered in England and Wales. (ECF No. 62 at 1-2). ICSOP issued to Castle & Cook, Inc. (now Dole Food Company (“Dole”)), an umbrella liability insurance policy providing third-party liability coverage for the period October 1, 1968 to October 1, 1971, with a limit of $20,000,000. (Id. at 2 (the “ICSOP-Dole Policy”)). Hawaii law applied to disputes under the ICSOP-Dole Policy. (Id.)
AIG obtained from certain underwriters at Lloyd's of London (“Lloyd's Underwriters”) facultative reinsurance policies (the “Reinsurance Policies”) for the ICSOP-Dole Policy. (ECF No. 62 at 2-3). In 2009, EIL assumed, pursuant to a transfer under U.K. law, the reinsurance obligations under the Reinsurance Policies. (Id. at 3). The Reinsurance Policies each contain a provision entitled “Service of Suit Clause (U.S.A.)”, stating:
It is agreed that in the event of the failure of Underwriters hereon to pay any amount claimed to be due hereunder, Underwriters herein, at the request of the insured (or reinsured), will submit to the jurisdiction of any Court of competent jurisdiction within the United States and will comply with all requirements necessary to give such Court jurisdiction and all matters arising hereunder shall be determined in accordance with the law and practice of such Court.(ECF Nos. 81-1 at 9; 81-2 at 10).
In September 2016, Dole and its insurers reached a $30 million settlement under which AIG agreed to pay the full $20 million limit of the ICSOP-Dole Policy with respect to environmental claims that California homeowners had filed against Dole in 2009. (ECF No. 62 at 4). ICSOP paid the $20 million to Dole under the ICSOP-Dole Policy, then billed EIL for more than $7.2 million, representing the reinsured portion of the loss. (Id. at 4). EIL refused to indemnify ICSOP under the Reinsurance Policies. (Id.)
B. Procedural Background
On September 8, 2017, ICSOP filed a complaint invoking this Court's federal diversity jurisdiction and asserting against EIL two claims for breach of contract based on the Reinsurance Policies. (ECF No. 1 (“Complaint”)). In the Complaint, ICSOP included a notice pursuant to Federal Rule of Civil Procedure 44.1 that it intended to assert that the Reinsurance Policies were governed by English law. (Id. ¶ 7). On January 25, 2019, the parties filed their respective motions for summary judgment. (ECF Nos. 24, 30). Both parties submitted reports by English law experts and the relevant English legal authorities. (ECF Nos. 29-1-29-38; 35; 40; 44; 45-1-45-30; 47).
In the MSJ Order, Chief Judge Swain noted that the parties agreed that English law governed the Reinsurance Policies. (ECF No. 62 at 5). Applying English law, Chief Judge Swain held that “ICSOP is entitled to indemnification from EIL for its reinsured share of the settlement paid under the ICSOP-Dole Policy, ” rejected EIL's late notice defense, granted ICSOP's motion and denied EIL's. (Id. at 12-13). On September 15, 2020, the Court entered judgment in favor of ICSOP in the amount of $7,234,125 plus prejudgment interest in the amount of $1,250,597.81, for a total judgment of $8,484,722.81. (ECF No. 75 (“Judgment”)).
On September 29, 2020, ICSOP filed the Motion. (ECF No. 76). On October 13, 2020, EIL filed a notice of appeal, as well as its Opposition to the Motion. (ECF Nos. 80; 82). On October 26, 2020, noting the pendency of the Motion in this Court, the United States Court of Appeals for the Second Circuit stayed the appeal pending resolution of the Motion. (ECF No. 84). On October 27, 2020, EIL posted a bond in the amount of $9,418,042.32. (ECF No. 85).
On March 26, 2021, Chief Judge Swain referred the Motion to the undersigned for a Report and Recommendation. (ECF No. 86). On July 19, 2021, the parties presented oral argument on the Motion. (ECF No. 88).
III. DISCUSSION
A. Legal Standards
“[F]or centuries in England there has been statutory authorization to award costs, including attorneys' fees[, ]” to the prevailing party, commonly referred to as the English Rule. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 & n.18 (1975). As is relevant here, Rule 44.2 of the Civil Procedure Rules of the High Court of England & Wales (“Rule 44.2”) gives English courts discretion to award costs, with “the general rule” being “that the unsuccessful party will be ordered to pay the costs of the successful party.” (ECF No. 79-3 at 5; see ECF No. 79-1 ¶¶ 11, 14). This “general rule” does not apply to “proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division” or “from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.” (ECF No. 79-3 at 5)
In contrast, “New York follows the American rule and does not allow the prevailing party to recover its attorneys' fees unless there is a specific statutory or contractual right to such fees.” Katz v. Berisford Int'l PLC, 96 Civ. 8695 (JGK), 2000 WL 959721, at *7 (S.D.N.Y. July 10, 2000) (citing A.G. Ship Maint. Corp. v. Lezak, 503 N.E.2d 681 (1986)); Deutsche Bank Tr. Co. v. Am. Gen. Life ins. Co., 15 Civ. 3869 (GHW), 2016 WL 5719783, at *13 (S.D.N.Y. Sept. 30, 2016) (same) (citing Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 199 (2d Cir. 2003)).
“In a diversity action . . . a federal court follows federal procedure but applies the substantive law of the state in which it sits.” Katz, 2000 WL 959721, at *7 (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). To determine whether English or New York law governs ICSOP's request for fees in this case, “the Court must consider two ‘conceptually distinct' issues.” Deutsche Bank, 2016 WL 5719783, at *13 (quoting Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 151 (2d Cir. 2013)). “First, a federal court exercising diversity jurisdiction must apply the choice-of-law rules of the state in which that court sits to determine the rules of decision that would apply if the suit were brought in state court.” Liberty Synergistics, 718 F.3d at 151; see Adelson v. Harris, 973 F.Supp.2d 467, 476 (S.D.N.Y. 2013) (explaining that New York federal court applies New York choice-of-law rules), appeal filed, 774 F.3d 803 (2d Cir. 2014), certifying questions to Nevada Supreme Court, 133 Nev. 512 (Nev. 2017). “Second, after using state conflict-of-laws principles to ascertain the rules of decision that would apply in the state courts of the federal forum, federal courts apply those state rules of decision that are ‘substantive' under Erie, and are consistent with federal law.” Liberty Synergistics, 718 F.3d at 151-52. Thus, to evaluate the Motion, “the Court must first apply New York's choice-of-law rules to determine which rule of decision-New York attorneys' fee law or England's attorneys' fee law-would apply to the suit if it were brought in state court, ” and “then determine whether this rule of decision would be considered ‘substantive' by New York courts.” Deutsche Bank, 2016 WL 5719783, at *13. “Only if this rule of decision is substantive must the Court apply it in this case.” Id.
B. Application
1. Whether the English Rule is procedural or substantive
As other courts in this District have noted, “‘[d]ecisions in this circuit are in conflict regarding whether attorney fee shifting should generally be classified as substantive or procedural under New York law.'” Deutsche Bank, 2016 WL 5719783, at *13 (quoting Ancile Inv. Co. v. Archer Daniels Midland Co., 992 F.Supp.2d 316, 319 (S.D.N.Y. 2014)); see Glispa GmbH v. Cupcake Digit., Inc., No. 16 Civ. 7230 (NRB), 2017 WL 5466669, at *1 (S.D.N.Y. Nov. 2, 2017) (noting “that whether the English Rule is properly considered a substantive rule subject to adoption through a choice-of-law provision remains an open question”); Bensen v. Amer. Ultramar Ltd., No. 92 Civ. 4420 (KMW) (NRB), 1997 WL 317343, at *9 (S.D.N.Y. June 12, 1997) (noting that “the English [R]ule has been applied in very few American cases, ” which did not “provide definitive principles to guide” the Court as to the application to non-compulsory counterclaim).
“In New York, procedural matters ‘pertain[] to the remedy rather than the right' while substantive matters are ‘ingredient[s] of the cause' or ‘qualif[y] the right.'” Deutsche Bank, 2016 WL 5719783, at *13 (quoting Tanges v. Heidelberg N. Am., Inc., 93 N.Y.2d 48, 54-56 (1999)); Certain Underwriters at Lloyds of London v. Ill. Nat'l Ins. Co., No. 09 Civ. 4418 (LAP), 2016 WL 6876497, at *9 (S.D.N.Y. Sept. 30, 2016) (explaining that “New York's choice of law rules indicate that attorneys' fees are a procedural issue, not a substantive one, and therefore New York law governs attorney's fees”), amended on other grounds, 2017 WL 10699406 (S.D.N.Y. Jan. 5, 2017). In addition, New York courts “take into account [the following] policy considerations that underlie the substance-procedure distinction . . .: (1) judicial efficiency, (2) forum-shopping, (3) fairness to the parties, and (4) New York public policy.” RLS Assocs., LLC v. United Bank of Kuwait PLC, 464 F.Supp.2d 206, 219 (S.D.N.Y. 2006).
New York's rule that each litigant bears its own costs applies “‘to every case, regardless of subject matter, unless an exception is specified by statute or contract' such that ‘[i]t is a fundamental part of the framework of litigation in the state, relied on by litigants and counsel as a matter of course.'” Deutsche Bank, 2016 WL 5719783, at *14 (quoting Bensen, 1997 WL 317343, at *13); Ill. Nat'l Ins. Co., 2016 WL 6876497, at *9 (“New York law applies the ‘American Rule' to every case, thereby holding both parties responsible for their own attorneys' fees.”) (citing Bensen, 1997 WL 317343, at *13). Thus, New York courts do “not infer a party's intention to waive the benefit of the rule unless the intention to do so is unmistakably clear from the language of the promise.” Hooper Assocs. v. AGS Computs., 74 N.Y.2d 487, 492 (1989). In other words, the “default” rule in New York is that the prevailing party does not receive attorneys' fees and costs, “regardless of the subject matter of the underlying litigation.” Deutsche Bank, 2016 WL 5719783, at *14. The universal applicability of New York's rule-absent an express statutory or contractual exception-“weigh[s] heavily in favor of finding that New York courts would deem the law on attorneys' fees procedural.” Id.
Rule 44.2 also applies without regard to the underlying subject matter of the action: the section in which it appears is entitled “General Rules About Costs.” (ECF No. 79-3 at 2). The only two exceptions to which the “general rule” does not apply are proceedings in the Court of Appeal “in connection with proceedings in the Family Division” and “in probate proceedings or family proceedings, ” neither of which is applicable here. (ECF No. 79-3 at 5 (Rule 44.2(3)(a)-(b))).
Rule 44.2 does not carve out any claim or theory of liability. Therefore, the broad applicability of Rule 44.2 weighs in favor of finding that it is procedural.
The Court will now consider the four policy considerations relevant to the determination whether the English Rule is procedural or substantive under the circumstances of this case
a. Judicial efficiency
“Applying the English [R]ule to this case could impair judicial efficiency[, ] as the Court would have to determine the amount of fees to be awarded under English law.” RLS, 464 F.Supp.2d at 219. Indeed, the Judgment was entered in this case in September 2020, and yet the parties and the Court are continuing to expend resources on this Motion, which has impeded the appeal as well. (ECF Nos. 75, 84). And, while ICSOP has provided the text of Rule 44.2 and its accompanying Practice Direction, as well as billing records for itself and Mr. David Scorey QC (ECF Nos. 78-1, 78-2), the Court will still need to determine how to apply Rule 44.2, because, as other courts in this district have recognized, “‘the application of the cost-shifting principle is much more complicated tha[n] the simple phrase ‘loser pays' implies.'” Deutsche Bank, 2016 WL 5719783, at *14 (quoting Bensen, 1997 WL 317343, at *7 (internal citation omitted)); see also RLS Assocs., LLC v. United Bank of Kuwait PLC, No. 01 Civ. 1290 (CSH), 2005 WL 578917, at *5 (S.D.N.Y. Mar. 11, 2005) (requesting English law affidavits on question of cost bond because “[n]either [the] Court no[r] American counsel for the parties are competent to express a view on that subject”). As part of that determination, the Court would need to stand in the position of a “taxing master” to assess which fees represent the “minimum expenses necessarily incurred.” Id. It is one thing to evaluate the reasonableness of rates charged and hours expended in an American litigation, as this Court has routinely done; it is quite another to predict how an English court would carry out its obligations under Rule 44.2.
See, e.g., Perez v. Rossy's Bakery & Coffee Shop, Inc., No. 19 Civ. 8683 (SLC) 2021 WL 1199414, at *9-11 (S.D.N.Y. Mar. 30, 2021); Angulo v. 36th St. Hosp. LLC, No. 19 Civ. 5075 (GBD) (SLC), 2020 WL 4938188, at *15-18 (S.D.N.Y. July 31, 2020) adopted by, 2020 WL 4936961 (S.D.N.Y. Aug. 24, 2020); Morozov v. ICOBOX HUB, Inc., No. 18 Civ. 3421 (GBD) (SLC), 2020 WL 5665639, at *7-10 (S.D.N.Y. May 5, 2020) adopted by, 2020 WL 5665563 (S.D.N.Y. Aug. 18, 2020).
b. Fairness to the parties
The next policy consideration is fairness to the parties, that is, whether the parties expected the English Rule to apply. See RLS Assocs., 464 F.Supp.2d at 219. The Reinsurance Policies themselves do not contain a choice-of-law clause, only the Service of Suit clause quoted above. (ECF Nos. 81-1 at 9; 81-2 at 10; 88 at 15). The “permissive” Service of Suit clause does not “bind[] the parties to a particular forum, but provides only that [EIL] will submit to the jurisdiction of a United States court, ” and so does not “limit jurisdiction to a particular forum.” Brooke Grp. Ltd. v. JCH Syndicate 488, 87 N.Y.2d 530, 534 (1996). Importantly, the Service of Suit clause also requires that a dispute about EIL's failure to pay “shall be determined in accordance with the law and practice” of this Court-not an English court (ECF Nos. 81-1 at 9; 81-2 at 10 (emphasis added))-and the practice of this Court, sitting in diversity and applying procedural rules of New York, would not award attorneys' fees and costs to the prevailing party. See Oscar Gruss, 337 F.3d at 199. That the parties contemplated litigating in a United States court, where the American rule generally applies, undermines any inference that they expected the English Rule to apply regardless of the forum. Accordingly, it is not “unmistakably clear from the language of” the Reinsurance Policies that the parties intended the English Rule to apply. Hooper Assocs., 74 N.Y.2d at 492.
The second policy consideration listed in RLS Associates was forum-shopping, a concern that does not arise here, given the Service of Suit clause contemplating that EIL would submit to the jurisdiction of a United States court. (See ECF Nos. 81-1 at 9; 81-2 at 10).
The Court respectfully disagrees with ICSOP's argument that because English law “govern[s] every issue in this litigation, ” it is not unfair to apply the English Rule to ICSOP's fee request. (ECF No. 88 at 9). While it may have been predictable that, because the Reinsurance Policies were sold in the London market, English law would govern their interpretation, the Reinsurance Policies do not dictate that litigation be brought in an English court, contain a feeshifting provision, or provide that the English Rule would apply in a United States court in which the parties chose to litigate. Under these circumstances, “a New York court would consider fee shifting to be procedural” and apply New York law to deny attorneys' fees. Ancile Inv. Co. v. Archer Daniels Midland Co., 992 F.Supp.2d 316, 320 (S.D.N.Y. 2014) (applying New York's rule in the absence of contractual language between the parties contemplating that “Brazilian rule on attorney fee shifting would apply”).
In addition, the parties' conduct in this litigation has not exhibited their expectations that the English Rule would apply. Although ICSOP included in its Complaint a notice under Rule 44.1 that English law “governed” the Reinsurance Policies, it did not include in its prayer for relief a demand for attorneys' fees and costs, only a boilerplate request for “such other relief as may be just and proper.” (See ECF No. 1 ¶ 7, “Wherefore” clause (iii)). ICSOP's request for attorneys' fees is arguably one for “special damages, ” which Federal Rule of Civil Procedure 9(g) requires “be pleaded specifically.” U.S. for Harbor Clean Corp. v. M. Zanis Contracting Corp., No. 95 Civ. 2318 (SJ), 1996 WL 560300, at *2 (E.D.N.Y. Aug. 28, 1996); see Bensen, 1997 WL 317343, at *11 (listing other Circuits and district courts within the Second Circuit that deemed attorneys' fees to be special damages to which Rule 9(g) applies). ICSOP has not generally, let alone specifically, pled special damages in its Complaint. Similarly, in its summary judgment motion, ICSOP sought judgment in the amount of the claims “plus pre-judgment interest from the date payment was due, ” but did not mention attorneys' fees. (ECF No. 25 at 21). That English law dictated the rate of pre-judgment interest does not correlate to a requirement that the English Rule apply to ICSOP's fee request. See Ill. Nat'l Ins., 2016 WL 6876497, at *9 (despite application of New Jersey law to substantive interpretation of policy and rate of pre-judgment interest, holding that “New York law governs attorneys' fees”). Furthermore, as EIL argues, “ICSOP elected to sue in this court, ” which does not have a fee-shifting rule, “rather than in London.” (ECF No. 88 at 17). Having chosen to litigate in a forum that follows the American rule, ICSOP is bound by that choice. In short, the parties' conduct over the first three years of this litigation belies any suggestion that ICSOP, let alone EIL, expected the English Rule to apply. See Bensen, 1997 WL 317343, at *9 (denying request to apply English Rule first made several years into litigation because doing so “would be wholly inconsistent with the parties' justified expectations and would produce an unpredictable result”).
The absence of an English choice-of-law or fee-shifting provision in the Reinsurance Policies, the language of the Service of Suit clause, and the lack of earlier notice from ICSOP that it was seeking attorneys' fees distinguish this case from those ICSOP cites in which other courts deemed fee shifting rules to be substantive. (ECF Nos. 77; 83). In RLS Associates, LLC v. United Bank of Kuwait PLC, Judge Sweet observed that the contract was “governed by English law and both [parties] assumed, well into the litigation, that the English [R]ule on attorneys' fees would apply.” 464 F.Supp.2d at 219. As Judge Sweet noted, “the issue [was] straightforward because the contract contains a choice of law clause.” Id. at 214. Similarly, the contract in Katz v. Berisford International PLC contained an express English choice-of-law clause, such that the parties had “justified expectations” that the English Rule would apply. 2000 WL 959721, at *9. Although the contract in Csaky v. Meyer did not contain an English choice-of-law clause, it contained a provision for recovery of “costs of [the] proceedings, ” such that Judge Martin found that “it [was] clear that the meaning of [the contract] was to impose attorneys' fees, as well as other legal costs ....” No. 94 Civ. 8117 (JSM), 1995 WL 494574, at *2 (S.D.N.Y. Aug. 18, 1995). Present in each of these cases was the parties' expectation-based on the language of the contract and their conduct during the litigation-that the English Rule would apply.
Because RLS Associates is distinguishable, it is not necessary to reach EIL's argument that that case was “wrongly decided.” (ECF No. 80 at 16-21).
The opposite is true here: as ICSOP's counsel acknowledged during oral argument, the Reinsurance Policies do not contain an English choice-of-law clause. (ECF No. 88 at 15). ICSOP does not, and cannot, argue that the Reinsurance Policies contain a fee-shifting provision. And, as set forth above, ICSOP waited until after the Judgment was entered to first assert a request for attorneys' fees and costs. Under these circumstances, “it would be unfair to apply the English [R]ule where the underlying contract is not clear that the losing party in litigation would be responsible for another litigant's fees.” Deutsche Bank, 2016 WL 5719783, at *14 (finding that “no parties' expectations would be upset by applying the New York rule on attorneys' fees” where transaction documents did not contain a provision “expressly providing for an award of attorneys' fees to the prevailing party”); see Ancile, 992 F.Supp.2d at 320 (declining to award attorneys' fees where “the parties had no expectation that the [] rule on attorney fee shifting would apply”); Bensen, 1997 WL 317343, at *11 (declining to award fees to defendants, who “failed to forewarn plaintiff of this extremely unusual request in their responsive pleadings”).
c. New York's public policy
Finally, with respect to New York's public policy, “the New York rule on attorneys' fees ‘reflects a fundamental legislative policy decision that, save for particular exceptions . . . or when parties have entered into a special agreement[, ] . . . it is undesirable to discourage submission of grievances to judicial determination and that, in providing freer and more equal access to the courts, the present system promotes democratic and libertarian principles.'” Deutsche Bank, 2016 WL 5719783, at *15 (quoting Mighty Midgets, Inc. v. Centennial Ins. Co., 47 N.Y.2d 12, 22 (1979)); Atomi, Inc. v. RCA Trademark Mgmt., S.A.S., No. 14 Civ. 7456 (VEC), 2015 WL 1433229, at *5 (S.D.N.Y. Mar. 30, 2015) (describing New York's “rule that each litigant bear its own costs” as a “‘fundamental policy' of the forum”).
The Court agrees with Judge Woods's holding in Deutsche Bank Trust Co. v. American General Life Insurance Co. that “New York's public policy weighs strongly against finding the English [R]ule on fees to be substantive.” 2016 WL 5719783, at *15. Judge Woods held “that a New York court would consider the issue of attorneys' fees to be procedural rather than substantive, ” and on that basis, declined to award attorneys' fees. Id. at *14. Although not expressly considering the three policy factors mentioned in RLS, the court in Atomi Inc. v. RCA Trademark Management also concluded that the French rule, which, like the English rule, awards fees to a prevailing party, was procedural and therefore denied the defendant's motion for attorneys' fees. 2015 WL 1433229, at *5.
Similarly, several other courts considering fee shifting statutes in a New York choice-of-law analysis have deemed them procedural and accordingly declined to award attorneys' fees. See, e.g., Purjes v. Plausteiner, No. 15 Civ. 2515 (VEC), 2017 WL 6055047, at *2 (S.D.N.Y. Sept. 27, 2017) (finding that New York statute providing for recovery of attorneys' fees for “frivolous conduct” was procedural and therefore did not apply in diversity action in federal court); Spirit Realty, L.P. v. GH & H Mableton, LLC, 227 F.Supp.3d 291, 302-03 (S.D.N.Y. 2017) (same); In re Bagbag, No. 08-12667 (MEW), 2020 WL 1304146, at *4-5 (Bankr. S.D.N.Y. Mar. 17, 2020) (same); see also Conte v. Flota Mercante Del Estado, 277 F.2d 664, 671-72 (2d Cir. 1960) (finding that provision in Argentinian Code of Civil and Commercial Procedure providing generally for prevailing party to recover attorneys' fees was procedural and therefore did not apply in federal court); see also In re Customs & Tax Admin. of Kingdom of Den., No. 18 MD 2865 (LAK), 2020 WL 3962066, at *5 (S.D.N.Y. July 13, 2020) (expressing, in dicta, “serious doubts” that English Rule would apply because New York courts “appear to treat foreign fee shifting rules as procedural, meaning they cannot apply by way of a choice of law provision”).
Each of these decisions supports the conclusion that, under a New York choice-of-law analysis, the English Rule is procedural under the circumstances of this case.
2. The English Rule is inapplicable.
As Judge Woods explained in Deutsche Bank, “[o]nly if th[e] rule of decision” that results from the choice-of-law analysis “is substantive must the Court apply it in this case.” 2016 WL 5719783, at *13. Because the English Rule is procedural under the circumstances in this case, it does not apply. Accordingly, I respectfully recommend that ICSOP's request for attorneys' fees and costs be denied.
IV.CONCLUSION
For the reasons set forth above, I respectfully recommend that ICSOP's Motion be DENIED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Chief Judge Swain.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).