Summary
denying motion for attorney's fees under Section 1988 as untimely because defendant did not file within 14 days of the entry of judgment and "offered no good reason why [the deadline] should not be enforced here."
Summary of this case from Bartels v. Incorporated Vill. of Lloyd HarborOpinion
Following clerk's entry of final judgment in favor of defendant, defendant moved for those attorneys' fees and transcript costs incurred in defending against the plaintiff, whose case had been dismissed without opposition. The District Court, Rakoff, J., held that: (1) motion for attorney fees was untimely, but (2) defendant would be allowed to recover transcript costs.
Motion for attorneys' fees denied, and motion for costs granted.
Joshua Friedman, Dennin & Friedman, LLP, New York City, for plaintiffs.
Robert M. Wolff, Richard C. Hubbard, III & Bradley A. Sherman, Duvin, Cahn & Hutton, Cleveland, OH, for defendant.
MEMORANDUM ORDER
RAKOFF, District Judge.
The Clerk of the Court entered final judgment in favor of defendant on November 27, 2000. Thereafter, defendant moved, on December 19, 2000, for those attorneys' fees and transcript costs incurred in defending against plaintiff Miller, whose case had been dismissed without opposition. Plaintiff submitted opposing papers. Upon review, the Court now denies the motion for attorneys' fees and grants the motion for costs.
The motion for attorneys' fees is denied as untimely. Federal Rule of Civil Procedure 54(d) requires that motions for " attorneys' fees and related nontaxable expenses" be filed " no later than 14 days after entry of judgment" unless otherwise provided by statute or order of the court. The statute under which defendant here seeks attorneys' fees, 42 U.S.C. § 1988, does not provide any other time limit, nor does any order of the court. While defendant also purports to rely on Local Civil Rule 54.1 of the Southern District of New York, that only allows a motion for taxable costs to be filed within 30 days of judgment, and makes expressly clear, as does Fed.R.Civ.P. 54(d) itself, that attorneys' fees are not taxable costs. See Fed.R.Civ.P. 54(d)(2)(A); Local Civ.R. 54.1(c)(7). Given the normal American presumption against the shifting of attorneys' fees, as well as the strong interest in the finality of judgments, the mandatory 14-day limit for seeking attorneys' fees should not be lightly disturbed, and defendant has offered no good reason why it should not be enforced here.
Conversely, Fed.R.Civ.P. 54(d)(1), in accordance with traditional American practice, provides that taxable costs, i.e., " costs other than attorneys' fees," shall be " allowed as of course to the prevailing party," and Local Civil Rule 54.1(a) not only permits a request for such costs to be filed within 30 days of the entry of judgment but also specifies that taxable costs include " [c]osts for depositions ... if they were used by the court in ruling on a motion for summary judgment or other dispositive substantive motion." See Local Civil Rule 54.1(c)(2). Here, it was only after defendant took Ms. Miller's deposition and moved for summary judgment against her that plaintiff chose not to oppose dismissal of her claims (even though they bordered on the frivolous). While plaintiffs' counsel alleges in largely conclusory fashion that payment of the total of $1,344.82 in taxable costs would work an undue hardship on plaintiff Miller, who has limited means, the Court is unpersuaded that Ms. Miller cannot pay these modest costs.
Accordingly, the motion for attorneys' fees is denied, but the Clerk is directed to tax costs in the amount of $1,344.82 against plaintiff Miller.
SO ORDERED.