Art Midwest, Inc. v. Clapper

Full title: ART MIDWEST, INC., et al. Plaintiffs and Counter-Defendants, V. DAVID M…

Court: United States District Court, N.D. Texas

Date published: Apr 5, 2004

Civil Action No. 3:99-CV-2355-R (N.D. Tex. Apr. 5, 2004)

Opinion

Civil Action No. 3:99-CV-2355-R

April 5, 2004

CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

PAUL STICKNEY, Magistrate Judge

Pursuant to the District Court's Orders of Reference, entered November 19, 2003, "Plaintiff's Bill of Particulars Related to Attorneys' Fees," filed July 9, 2003, Defendants/Counter Plaintiffs/Intervening Plaintiffs' "Motion for Court Review of Clerk of Court's Taxation of Plaintiffs' Bill of Costs Pursuant to Fed.R.Civ.P. 54(d)(1), Objections to Plaintiffs' Bill of Costs and Request for Oral Argument," filed July 18, 2003, and "Defendants/Counter Plaintiffs and Intervening Plaintiffs' Fed.R.Civ.P. 60(a) Motion with Proposed Bill of Particulars as to Costs and Attorneys Fees," filed July 28, 2003, have been referred to the United States Magistrate Judge for hearing, if necessary, and for recommendation. The Court held a hearing on these motions on February 25, 2004. However, Defendants/Counter Plaintiffs and Intervening Plaintiffs have since filed a third Notice of Appeal on March 16, 2004. Therefore, the Court RECOMMENDS that the motions be DENIED without prejudice to renewal after disposition of the appeal.

The 1993 Advisory Committee Note to Fed.R.Civ.P. 54(d)(2) states that a district court remains free to award attorneys' fees during the pendency of an appeal and to defer such a ruling until the appeal is resolved; specifically, it states:

Filing a motion for fees under this subdivision does not affect the finality or the appealability of a judgment, though revised Rule 58 provides a mechanism by which prior to appeal the court can suspend the finality to resolve a motion for fees. If an appeal on the merits of the case is taken, the court may rule on the claim for fees, may defer its ruling on the motion, or may deny the motion without prejudice, directing under subdivision (d)(2)(B) a new period for filing after the appeal has been resolved. A notice of appeal does not extend the time for filing a fee claim based on the initial judgment, but the court under subdivision (d)(2)(B) may effectively extend the period by permitting claims to be filed after resolution of the appeal. A new period for filing will automatically begin if a new judgment is entered following a reversal or remand by the appellate court or the granting of a motion under Rule 59.

FED. R. Civ. P. 54 Advisory Committee Notes (1993 Amendments).

Although filing a motion for fees under Fed.R.Civ.P. 54(d)(2) does not affect the finality or the appealability of a judgment, the Court RECOMMENDS that the motions be DENIED without prejudice to renewal after disposition of the appeal.

SO RECOMMENDED.

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Am, 474 U.S. 140, 150 (1985); Perales v. Casillas, 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).