Terra Venture Inc. v. JDN Real Estate — Overland Park, L.P.

Full title: TERRA VENTURE INC. and TERRA VENTURE REALTY, INC., Plaintiffs, v. JDN REAL…

Court: United States District Court, D. Kansas

Date published: Aug 8, 2005

Civil Action No. 02-2593-CM (D. Kan. Aug. 8, 2005)

Opinion

Civil Action No. 02-2593-CM.

August 8, 2005

MEMORANDUM AND ORDER

CARLOS MURGUIA, District Judge

Plaintiffs brought this breach of contract action seeking more than five million dollars in lost commissions, fees, and profits. The court granted summary judgment to defendants on October 15, 2004, and entered judgment on November 12, 2004. Now pending before the court is defendants' Motion for Attorneys' Fees (Doc. 309). Defendants claim that they are entitled to attorneys' fees pursuant to a provision in a contract between JDN Real Estate — Overland Park, L.P. and Terra Venture, Inc.

Plaintiffs have appealed the court's summary judgment ruling. The court retains jurisdiction during appeal to rule on a motion for attorneys' fees which is collateral to the issues on appeal. See Derringer v. Chapel, 98 Fed. Appx. 728, 734 (10^th Cir. 2004) (citation omitted); Garcia v. Burlington N.R. Co., 818 F.2d 713, 721 (10^th Cir. 1987) (citation omitted). But cf. F.H. Krear Co. v. Nineteen Named Trustees, 776 F.2d 1563, 1564 (2d Cir. 1985) (holding that in a contract action, "where attorneys' fees are a contractually stipulated element of damages, a judgment is not final until the fees have been determined"). In this case, however, the interests of judicial efficiency weigh in favor of waiting for a mandate from the Tenth Circuit before awarding or denying attorneys' fees. See Fed.R.Civ.P. 54(d) advisory committee's note to 1993 amendments (stating that during appeal, court may rule on claim for attorneys' fees, defer ruling, or deny motion without prejudice); Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 226 (2d Cir. 2004). The court therefore denies defendants' motion without prejudice. Defendants shall have 14 days from the date of a Tenth Circuit mandate to renew their motion, if not moot. See Fed.R.Civ.P. 54(d)(2)(B) (providing that court may alter time for filing motion).

IT IS THEREFORE ORDERED that defendants' Motion for Attorneys' Fees (Doc. 309) is denied without prejudice. Defendants may renew their motion, if not moot, within 14 days of the date the Tenth Circuit issues a mandate in this case.