United States District Court, M.D. Louisiana
ORDER ON PLAINTIFF'S MOTION FOR FEES AND
RICHARD L. BOURGEOIS, JR. MAGISTRATE JUDGE
the Court is Plaintiff's Notice of Late Application to
Have Costs and Attorney's Fees Taxed and Motion to Assess
Attorney's Fees and Costs (Motion) (R. Doc. 87), filed on
March 30, 2017. As of this Order, Defendant has not responded
to the Motion. For the reasons given below, Plaintiff's
Motion is GRANTED in part to the extent it seeks
post-judgment interest, but is otherwise DENIED as untimely
and procedurally deficient to the extent it seeks an award of
costs or attorney's fees and related expenses.
a bench trial, this Court issued a Memorandum of Decision and
simultaneously entered a Final Judgment on February 2, 2017.
(R. Docs. 84, 85). The Court ruled in favor of Plaintiff on
his Eighth Amendment claim for sexual assault, but otherwise
entered judgment in favor of Defendant. (R. Doc. 85). Because
Plaintiff prevailed on his sexual assault claim, the Court
awarded $1.00 in nominal damages and $1, 000.00 in punitive
damages, in addition to reasonable costs, and attorney's
fees and expenses. (R. Doc. 84 at 12).
Court ordered Plaintiff to file a motion for attorney's
fees and related non-taxable expenses by February 17, 2017
and to “include the information described in Local Rule
54(b) (Award of Attorney's Fees).” (R. Doc. 84 at
12). Defendant was then given until February 24, 2017 to
respond to any motion filed by Plaintiff. As for taxable
costs presumptively allowed under Rule 54(d)(1) of the
Federal Rules of Civil Procedure and 28 U.S.C. § 1920,
Local Rule 54(c) directs Plaintiff to “serve on the
attorney for the adverse party and file with the Clerk of
Court a notice of application to have the costs
taxed, together with a memorandum signed by the attorney,
” within “thirty days after receiving the notice
of entry of judgment.” LR 54(c) (Memorandum of Costs)
(emphasis added). That deadline was March 6, 2017.
the clear February 17, 2017 (attorney's fees and
expenses) and March 6, 2017 (costs) deadlines, Plaintiff
waited until March 30, 2017 to file the instant Motion
seeking $19, 638.00 in attorney's fees and $963.18 in
“soft and hard costs.” (R. Doc. 87). Plaintiff
also requests “interest from the date of judgment
pursuant to 28 U.S.C. § 1961.” (R. Doc. 87 at 2).
filed the untimely Motion without requesting or otherwise
being granted leave of Court. In it, Plaintiff fails to even
acknowledge the Court-ordered deadline of February 17, 2017
to file any motion seeking attorney's fees and related
non-taxable expenses. Instead, Plaintiff assumes that Local
Rule 54(c)'s 30-day deadline for seeking taxable costs
also applies to his request for attorney's fees. And
while Plaintiff acknowledges that this 30-day deadline ran
“from [the] entry of judgment, ” he
argues that filing his Motion “within 30 days of the
Judgment becoming final, ” should suffice (R.
Doc. 87-2 at 2) (emphasis added). The Court does not agree.
LAW AND ANALYSIS
54(d) of the Federal Rules of Civil Procedure pertains to the
recovery of taxable costs, as well as attorney's fees and
related nontaxable expenses, by a prevailing party.
Fed.R.Civ.P. 54(d)(1)-(2). As the prevailing party in this
action, Plaintiff is presumptively entitled to taxable costs
pursuant to Rule 54(d)(1) of the Federal Rules of Civil
Procedure and 28 U.S.C. § 1920. Plaintiff may also be
awarded statutory attorney's fees, including related
nontaxable expenses, pursuant to 42 U.S.C. § 1988 and
Rule 54(d)(2). As discussed below, the recovery of
“taxable costs” under Rule 54(d)(1) is separate
and distinct from the recovery of “attorney's fees
and related nontaxable expenses” mentioned in Rule
54(d)(2) - a distinction ignored by Plaintiff.
54(d)(1) gives rise to a presumption that “costs”
should be awarded to the prevailing party.
“Costs” presumed under Rule 54(d)(1) are limited
to those taxable costs listed in 28 U.S.C. § 1920 -
e.g., fees of the clerk and marshal, fees of the court
reporter and docket fees, among other things. Cobb v.
City of Roswell, Ga., 987 F.Supp.2d 1319, 1322 (N.D.Ga.
the entry of judgment, a party seeking to recover taxable
costs pursuant to Rule 54(d)(1) and § 1920 must initiate
their request by filing a bill of costs directly before the
Clerk of Court. Vanderbilt Mortgage & Finance, Inc.
v. Flores, 2011 WL 2160928, at *7 (S.D. Tex. May 27,
2011) (“Taxable costs are taxed by the clerk rather
than the court.”). Here, Local Rule 54(c) required
Plaintiff to make his filing before the Clerk of Court within
30 days of the entry of judgment.
fees and related nontaxable expenses are not listed under 28
U.S.C. § 1920 and are therefore not presumptively
recoverable as “taxable costs” under Rule
54(d)(1). Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 440-42 (1987). Rather, Rule 54(d)(2)
explains that attorney's fees and related nontaxable
expenses may only be recovered by the prevailing party if
provided by statute. Here, 42 U.S.C. § 1988 allows a
prevailing § 1983 claimant to recover an award of
attorney's fees and related nontaxable expenses.
Cappeletti Bros., Inc. v. Broward County,
754 F.Supp. 197, 198 (S.D. Fla. 1991) (Under § 1988,
related nontaxable expenses “are subsumed within the
concept of a reasonable attorney's fee, ” but
“are only recoverable if the party is entitled to
attorney's fees.”); Harris v. Marhoefer,
24 F.3d 16, 20 (9th Cir. 1994) (Related nontaxable expenses
may generally include “out-of-pocket expenses that
would normally be charged to a fee paying client.”).
taxable costs, Rule 54(d)(2) requires a party seeking
attorney's fees and related expenses to file a motion
before the court. The motion must be filed within 14 days of
the entry of judgment, unless ordered otherwise. Fed.R.Civ.P.
54(d)(2). In this case, the Court gave Plaintiff 15 days from
the entry of judgment - until February 17, 2017 - to file any
motion for attorney's fees and related expenses. (R. Doc.
prevailing party fails to act within the times specified, it
may act as a waiver of that party's claim for costs or
attorney's fees and expenses. Chaney v. New Orleans
Public Facility Management, Inc., 2011 WL 87617, at *1
(E.D. La. Feb. 20, 1998). When a motion is filed or costs are
otherwise sought beyond the deadline, “the Court may
grant an extension if the failure to timely file was the
result of excusable neglect.” Chaney, 2011 WL
87617, at *2 (untimely motion for attorney's fees and
related expenses may only be allowed upon a showing of
excusable neglect); see also Lasater v. Texas A&M
University-Commerce, 2013 WL 991288, at *1 (N.D. Tex.
Feb. 19, 2013) (“[T]he Court has discretion to extend
the time allowed to file the bill of costs if the failure to
timely file was due to excusable neglect.”). While the
court should consider all relevant circumstances, including
the reason for the delay ...