Opinion
C.A. No. 03C-06-018 JTV.
Submitted: July 7, 2006.
Decided: July 13, 2006.
Upon Plaintiff's Motion for Reargument. Denied.
Upon Plaintiff's Motion for Relief. Moot.
Mary E. Sherlock, Esquire, Dover, Delaware; attorney for the Plaintiff.
Brian T. McNelis, Esquire of Young McNelis, Dover, Delaware; attorneys for the Defendant.
ORDER
Plaintiff, Paul Casarotto, filed a Motion for Reargument and a Motion for Relief from this Court's January 17, 2006 Order ("Order"), which awarded Defendant, United Services Automobile Association, costs in the amount of $4,600.00. Plaintiff bases his request for the Motion for Relief on the fact that his counsel never received Defendant's Motion for Costs and, therefore, Superior Court Civil Rule 60(b) permits this Court to relieve Plaintiff of this Court's Order. Regarding the Motion for Reargument, Plaintiff contends that the Motion for Costs should have been denied because it was untimely pursuant to Superior Court Civil Rule 54(d) and the fees requested were unreasonable. Defendant argues that if this Court determines that Plaintiff's conduct constitutes excusable neglect with respect to failing to respond to the Motion for Costs, then Defendant's conduct in neglecting to file the Motion for Costs within ten days as required by Rule 54(d) also amounts to excusable neglect. Defendant also asserts that the two letters it sent to Plaintiff on August 1, 2005 and August 4, 2005, just a few days after the final judgment issued on July 29, 2005, served as notice to Plaintiff that it sought Dr. Katz's fees.
Rule 60(b) states, in pertinent part, "[o]n motion and upon such terms as are just, the Court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment."
Rule 54(d) provides, "[e]xcept when express provision therefor is made either in a statute or in these Rules or in the Rules of the Supreme Court, costs shall be allowed as of course to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment unless the Court otherwise directs." (emphasis added).
For the reasons set forth below, Plaintiff's Motion for Reargument is denied and his Motion for Relief is deemed moot.
Discussion
This Court will address the Motion for Reargument first. Both Plaintiff and Defendant contend that Rule 54(d) governs the costs issue in this case. However, I disagree. I find that Rule 54(d) only applies when the "prevailing party" seeks to recover costs. Therefore, any case law cited by Plaintiff that pertains to Rule 54(d) is inapposite. In the case sub judice, it is the losing party, Defendant, who requests costs from Plaintiff. Therefore, Superior Court Civil Rule 68 is the applicable Rule. Additionally, in the Order, this Court already determined that the fees requested by Defendant were unreasonable and adjusted them accordingly. Plaintiff also contends that case law prohibits this Court from awarding fees for an expert's consultation with a party. However, Plaintiff's argument is inaccurate. The language cited by Plaintiff, that "[w]itness fees granted under this provision are limited to time spent in court for the purpose of testifying but not for listening to other witnesses for orientation or consultation with a party," applies to an expert witness consulting with a party during the trial, not consulting prior to trial, which is what I awarded fees for in the previous Order. Consequently, Plaintiff's bases for reargument are unsuccessful; thus, I conclude that my earlier Order would remain the same even if Plaintiff were permitted to file a response to the Motion for Costs.As a result of my determination that Plaintiff's defenses to the Motion for Costs would fail, Plaintiff's Motion for Relief is moot.
Based on the foregoing, Plaintiff's Motion for Reargument is denied and his Motion for Relief is deemed moot.
IT IS SO ORDERED.