Opinion
CIVIL ACTION No. 00-2067-KHV
July 3, 2001
MEMORANDUM AND ORDER
On May 10, 2001, the Court entered an order granting default judgment to plaintiff on her claims against Wesley Health Services f/k/a Hunter Care, Inc. d/b/a/ Friendship Manor of Anthony, Kansas, for sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. as amended. See Memorandum And Order (Doc. #33) filed May 10, 2001. After an evidentiary hearing, the Court awarded damages in the amounts of $75,000 in compensatory damages, $40,000 in back pay and $4,250 in front pay. See id. at 5. With respect to plaintiff's request for attorneys fees, the Court directed her to follow the procedures set forth Rule 54(d)(2), Fed.R.Civ.P. and D. Kan. Rule 54.2. See id. at 3 n. 5. This matter comes before the Court on plaintiff's Motion For Attorney Fees (Doc. #35) filed May 24, 2001.
Plaintiff requested a total of $475,000 in damages, however, the Court found that she was limited to the amount which she demanded in her prayer for relief. See id. at 2.
Under D. Kan. Rule 54.2, the Court will not consider a motion to award statutory attorney's fees until the moving party shall have first advised the Court that she has consulted with the opposing party to try to reach an agreement with regard to the fee award. Plaintiff states that she has not attempted to consult because (1) the Court awarded damages by default judgment and defendant failed to appear and (2) no counsel has entered an appearance for defendant. See Memorandum In Support Of Fee Application Pursuant To F.D.R.C.R. [sic] 54(d)(2) (Doc. #36) and Certificate Of Consultation (Doc. #37), both filed June 26, 2001. D. Kan. Rule 54.2, however, provides no such exceptions. The rule provides:
[t]he court will not consider a motion to award statutory attorney's fees until the moving party shall have first advised the court in writing that after consultation promptly initiated by the moving party, the parties have been unable to reach an agreement with regard to the fee award.
* * * If the parties are unable to agree, within 30 days of the filing of the motion under Fed.R.Civ.P. 54(d)(2), the moving party shall file the statement of consultation required by this rule and a memorandum setting forth the factual basis for each criterion which the court is asked to consider in making an award. Other parties shall have 10 days in which to file a response to the memorandum.
D. Kan. Rule 54.2.
The Court has found that as a corporation, defendant may not appear in the case without counsel. See Order (Doc. #26) filed February 8, 2001. This fact, however, does not prevent plaintiff from consulting or at least attempting to consult directly with defendant. Moreover, because defendant previously appeared in the case through counsel, Rule 5, Fed.R.Civ.P. requires plaintiff to serve her filings on defendant. See Higginson v. Wood, Case No. 98-2162-KHV, 1999 WL 760272, at *2 (D.Kan. July 23, 1999); Radack v. Norwegian America Line Agency, Inc., 318 F.2d 538, 541-42 (2d Cir. 1963) (exception for parties in default for failure to appear in Rule 5(a) applies only to parties who have never made an appearance); James Wm. Moore et al., Moore's Federal Practice ¶ 5.03[3] (3d ed. 1999). Plaintiff states that she has served a copy of her Motion For Attorney Fees (Doc #35) on defendant's former counsel, but not on defendant. See id. at 2. Additionally, plaintiff has not served her Memorandum In Support Of Fee Application Pursuant To F.D.R.C.R. [sic] 54(d)(2) (Doc. #36) and Certificate Of Consultation (Doc. #37) on either defendant or defendant's former counsel. The Court will not consider plaintiff's request for attorney's fees until she has complied with the requirements of Rules 5 and 54(d)(2), Fed.R.Civ.P. and D. Kan. Rule 54.2.
IT IS THEREFORE ORDERED that plaintiff's Motion For Attorney Fees (Doc. #35) filed May 24, 2001 be and hereby is OVERRULED without prejudice. Plaintiff may re-file and re-serve the motion on or before July 20, 2001. In doing so, plaintiff shall comply with the requirements of Rules 5 and 54(d)(2), Fed.R.Civ.P. and D. Kan. Rule 54.2., including serving copies of all filings on defendant and consulting, or at least attempting in good faith to consult, with defendant pursuant to D. Kan. Rule 54.2.