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Lagarde v. Metz

United States District Court, M.D. Louisiana

May 31, 2017

FELTON LAGARDE
v.
SERGEANT CHRISTOPHER L. METZ

          ORDER ON PLAINTIFF'S MOTION FOR FEES AND COSTS

          RICHARD L. BOURGEOIS, JR. MAGISTRATE JUDGE

         Before 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.

         I. BACKGROUND

         Following 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).

         The 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.

         Despite 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).

         Plaintiff 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.

         II. LAW AND ANALYSIS

         Rule 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.

         Rule 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. 2013).

         After 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.

         Attorney's 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.”).

         Unlike 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[1] - until February 17, 2017 - to file any motion for attorney's fees and related expenses. (R. Doc. 84).

         If a 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 ...


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