Opinion
Civil Action No. 06-cv-00225-LTB.
February 12, 2008
ORDER
On January 11, 2008, this Court entered an order [Docket # 73] denying Defendant, Isaac G. Engida's, request to modify Plaintiff, Lorillard Tobacco Company's, Notice of Dismissal Without Prejudice [Docket # 64], and granting Defendant's motion for attorney fees and costs [Docket # 66]. I did not fix the amount of the attorney fee award at that time, but invited Defendant to submit papers and supporting affidavits. Defendant submitted his petition and supporting papers on February 8, 2008 [Docket ## 76, 77].
On February 11, 2008, I issued an order setting a briefing schedule for Defendant's petition [Docket # 78]. Pursuant to that order, Plaintiff has up to and including March 2, 2008, to file a response. Defendant has up to and including March 12, 2008, to file a reply.
Also on February 11, 2008, Plaintiff filed a notice of appeal [Docket # 79] of my January 11, 2008, order. The Tenth Circuit recently held it lacks jurisdiction to review an attorney fee award when the amount has not been fixed, because "[a]n award of attorney fees is not final and appealable within the meaning of 28 U.S.C. § 1291 until it is reduced to a sum certain." See Sieverding v. Colo. Bar Ass'n, 237 F. App'x 355, 358 (10th Cir. 2007); American Soda, LLP v. U.S. Filter Wastewater Group, Inc., 428 F.3d 921, 924 (10th Cir. 2005). As this Court "has not fixed the amount of fees in this case," the attorney fee portion of my January 11, 2008, order "is neither final nor appealable within the meaning of 28 U.S.C. § 1291 and is therefore not reviewable" by the Tenth Circuit. American Soda, 428 F.3d at 924-25.
Accordingly, the briefing schedule described in my February 11, 2008, order remains in effect. Plaintiff has up to and including March 2, 2008, to file a response to Defendant's Petition for Final Judgment Awarding Attorney Fees and Costs [Docket # 77]. Defendant has up to and including March 12, 2008, to file a reply.