Opinion
Case No. 99-2402-JWL
September 18, 2001
MEMORANDUM ORDER
ORI, Inc. filed suit against Mr. Lanewala alleging that his actions made him liable to ORI for breaching a protective covenant in his employment contract, for conversion, and for tortious interference with ORI's existing and prospective business contracts. On June 7, 2001, the court granted defendant's motion for summary judgment. See ORI, Inc. v. Lanewala, 147 F. Supp.2d 1069 (D. Kan. 2001). This matter is presently before the court on defendant's motion for attorney fees (Doc. 191). For the reasons set out below, the motion is denied.
The court does not address the plaintiff's argument that the defendant did not file his motion for attorney fees in a timely fashion under Federal Rule of Civil Procedure 54(d)(2)(B) because the defendant's motion is denied on other grounds.
Defendant relies on Federal Rule of Civil Procedure 54(d)(2) in arguing that he is entitled to attorney fees. Rule 54(d)(2)(A) states: "Claims for attorneys' fees and related non-taxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial." Rule 54(d)(2)(B) adds: "Unless provided by statute or order of the court, the motion must be filed and served no later than 14 days after entry of judgment; must specify the judgment and the statute, rule or other grounds entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought." (Emphasis added). Rule 54(d)(2)(B) reflects the general rule of American litigation that "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).
In his three-page motion for attorney fees, Mr. Lanewala did not specify the statute, rule or other grounds that could entitle him to an award of attorney fees. By not complying with the rule, his motion is subject to denial. Moreover, this action is before the court on diversity jurisdiction and Kansas law provides the substantive rule of decision. Under Kansas law, attorney fees can be awarded only if agreed to by contract or authorized by statute. See Hawkinson v. Bennett, 962 P.2d 445, 456 (Kan. 1998). The court is unaware of any statute that would be the basis for an award of attorney fees. Thus, if defendant had any basis for an award of attorney fees it would be in the contract between him and the plaintiff and his failure to specify such a contractual basis leaves the court with no conclusion to be drawn than that none exists.
IT IS THEREFORE ORDERED BY THE COURT THAT the defendant's motion for attorney fees (Doc. 191) is denied.
IT IS SO ORDERED.