Opinion
01 CIV. 1290 (CSH)
November 21, 2003
MEMORANDUM OPINION AND ORDER
The present status of this diversity case is that in an opinion and order reported at 2003 WL 22251332 (S.D.N.Y. Sept. 30, 2003), this Court denied plaintiff's motion for summary judgment, granted defendant's cross — motion for summary judgment, and dismissed the complaint with prejudice.
Plaintiff filed a timely notice of appeal from that opinion and order. The appeal is pending before the Court of Appeals.
In the interim, defendant has made a motion to recover its attorney's fees from plaintiff. Defendant moved under Rule 54(d)(2), Fed.R.CIV.P., a procedural rule which does not contain substantive fee — shifting provisions. In point of fact, the case does not fall under any American fee — shifting statute or rule. Rather, the case for defendant is that each of the Consultancy Agreements forming the subject matter of the action contained a choice of law provision that it "shall be governed by and construed in accordance with the laws of England," an incorporation which includes the general rule under English law "that fees are awarded to the prevailing party." Plaintiff's Brief at 2 n. 2 (citing cases). The "English rule" on attorney's fees may, of course, be contrasted with the "American rule," which leaves all parties in litigation, successful or unsuccessful, to bear their own attorney's fees, in the absence of a fee — shifting statute such as that found in the civil rights statutes. See 42 U.S.C. ¶ 1988(b) (in any action to enforce one of several civil rights statutes, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."). It will be noted that even under such a statute, the awarding of attorney's fees to a prevailing party lies within the trial court's discretion; defendant at bar regards the award as mandatory under English law, in the absence of exceptional circumstances.
Plaintiff has not responded to defendant's motion for attorney's fees. Instead, counsel suggested in a letter dated October 30, 2003 that the Court hold the motion in abeyance pending the disposition of plaintiff's appeal.
The Court endorsed that letter with an order dated October 31, 2003, which provided that "the Court will hold defendant's Rule 54(d) application in abeyance pending the outcome of plaintiff's appeal." Quite clearly, that order crossed in the mail with the letter of counsel for defendant dated November 3, 2003, which argued that the Court should decide defendant's motion for attorney's fees now. I will construe that letter as a motion for reconsideration of the Court's October 31, 2003 order. Having further considered the matter, I adhere to that order.
It is true, as defendant points out, that in White v. new Hampshire Dep't of Employment Sec., 455 U.S. 445, 454 (1982), a civil rights action governed by § 1988, the Supreme Court referred generally to the district courts' power to "avoid piecemeal appeals by promptly hearing and deciding claims to attorney's fees," adding that such a practice "normally will permit appeals from fee awards to be considered together with any appeal from a final judgment on the merits/' (footnote omitted). Moreover, district courts frequently adjudicate a prevailing civil rights plaintiff's claim for attorney's fees in advance of an appeal, notwithstanding the fact that if the appeal succeeds, the plaintiff is transformed in the twinkling of an eye from the prevailing party into the losing one, and any award by the district court of attorney's fees in his favor must be vacated. However, such a result does not automatically require the district court to conduct a second round of attorneys' fee litigation, this time at the behest of the ultimately prevailing defendant, because defendants in civil rights cases, even if they prevail, are awarded attorney's fees against the plaintiff only under exceptional circumstances. See, e.g., Dangler v. Yorktown Cent. Schools, 777 F. Supp. 1175, 1177 (S.D.N.Y. 1991) (in cases governed by § 1988, "plaintiff is awarded attorney's fees even if he or she prevails on only part of the case and even though a small benefit is derived while a prevailing defendant may obtain attorney's fees only upon a finding that the plaintiff's action was frivolous, unreasonable or without foundation, even though the action was not brought in subjective bad faith") (internal quotation marks and citations omitted).
That distinction apparently does not arise in the case at bar, since assuming without deciding that defendant's contentions about the applicability and effect of English law are correct, if plaintiff wins on appeal and the Court of Appeals directs summary judgment in its favor, plaintiff would enjoy the same entitlement to attorney's fees under English law that defendant presently enjoys in the present posture of the case. It would then have been a total waste of the parties' and this Court's resources to have litigated and adjudicated the reasonable amount of defendant's attorney's fees (an issue that not infrequently is bitterly contested). Therefore I conclude that in the circumstances of this case, the more efficient course is to hold defendant's motion for attorney's fees in abeyance pending the outcome of the appeal.
It is SO ORDERED.