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Rasnic v. Fca Us LLC

United States District Court, D. Kansas

February 5, 2019

LAWRENCE RASNIC AND REBECA LOPEZ-RASNIC, Plaintiffs,
v.
FCA U.S. LLC, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiffs' Motion For An Award Of Costs And Attorneys Fees (Doc. #95) filed December 28, 2018.[1] Plaintiffs' request $45, 000.00 in attorney's fees and $1, 349.21 in costs and litigation expenses.[2] See Plaintiffs' Memorandum In Support Of An Award Of Costs And Attorneys Fees (Doc. #96) filed December 28, 2018 at 21. For reasons stated below, the Court overrules plaintiffs' motion as untimely.

         Background

          On January 12, 2017, Lawrence Rasnic and Rebeca Lopez-Rasnic filed a complaint in state court against FCA U.S. LLC, alleging a nationwide class action. See Notice Of Removal (Doc. #1) filed February 2, 2017 at 1. On February 2, 2017, defendant removed the case to this Court. Id. On September 17, 2018, defendant notified the Court that plaintiffs intended to pursue only their individual claims. See FCA U.S. LLC's Notice Of Substantive Change In Case And Motion To Dismiss Class Allegations And For A New Scheduling Order (Doc. #89) at 1. On September 18, 2018, defendant tendered an offer of judgment to plaintiffs. See Plaintiffs' Acceptance of Defendant's Offer Of Judgment (Doc. #92) filed October 2, 2018. On October 2, 2018, plaintiffs informed the Court that they accepted an offer from defendant in which they would receive “payment of Five Thousand Dollars ($5, 000) without a return of the vehicle; plus taxable costs accrued as of the date of this offer of judgment and a reasonable attorneys' fee as agreed to by the parties; or in the absence of an agreement, determined by the Court.” Id. at 1. On November 5, 2018, the Clerk of the Court entered judgment in accordance with the parties' agreement. See Judgment In A Civil Case (Doc. #94). On December 28, 2018, plaintiffs filed Plaintiffs' Motion For An Award Of Costs And Attorneys Fees (Doc. #95) and a Statement Of Consultation And Declaration Pursuant To Local Rule 54.2(a) (Doc. #97).

         Legal Standards

         Under Fed.R.Civ.P. 54(d)(2)(A), a prevailing party may obtain statutory attorney's fees and related nontaxable expenses by filing a motion with the court. This motion must be filed no later than 14 days after the entry of judgment, “unless a statute or a court order provides otherwise.” Fed.R.Civ.P. 54(d)(2)(B). Rule 54(d)(2)(D), Fed. R. Civ. P., allows the court to establish by local rule special procedures regarding attorney's fees.[3] In the District of Kansas, D. Kan. Rule 54.2 sets out the local requirements for “[a] party who moves for statutory attorney's fees pursuant to Fed.R.Civ.P. 54(d)(2).” D. Kan. Rule 54.2(a). Where the parties cannot agree on a fee award, within 30 days of filing the fee motion, the moving party must file a statement that he or she consulted with the opposing party and a memorandum which sets forth the factual basis for each factor that the court considers when determining a fee award. By its plain language, D. Kan. Rule 54.2 applies only when a party has filed a motion under Fed.R.Civ.P. 54. See Layne Christensen Co. v. Bro-Tech Corp., 871 F.Supp.2d 1104, 1124 (D. Kan. 2012) (D. Kan. Rule 54.2 provides for statutory attorney's fee motion, then promptly-initiated consultation with opposing party, then filing of memorandum with factual basis for motion).

         In addition to attorney's fees and related nontaxable expenses, the prevailing party may recover costs under Fed.R.Civ.P. 54(d)(1), unless a federal statute, Federal Rule of Civil Procedure or court order directs otherwise. The court has discretion whether to allow or disallow costs to a prevailing party. Marx v. Gen. Revenue Corp., 568 U.S. 371, 377 (2013); Zeran v. Diamond Broadcasting, Inc., 203 F.3d 714, 722 (10th Cir. 2000) (citing Homestake Mining Co. v. Mid-Continent Exploration Co., 282 F.2d 787, 804 (10th Cir. 1960)). Under Fed. R. App. P. 4(a)(1)(A), a party has 30 days after entry of judgment to file a notice of appeal and under D. Kan. Rule 54.1(a)(1)(A), the party entitled to recover costs must file a bill of costs with the Clerk within 30 days after the time for appeal expires.

         Analysis

         On November 5, 2018, the Clerk of the Court entered judgment. Judgment In A Civil Case (Doc. #94). Thus, pursuant to Fed.R.Civ.P. 54(d)(2)(B)(i), the deadline for plaintiffs to file a motion for attorney's fees was November 19, 2018, i.e. 14 days after entry of judgment. Plaintiffs did not file their motion for attorney's fees until December 28, 2018, i.e. 53 days after entry of judgment, and did not request an extension of time.[4] Thus, plaintiffs' motion for attorney's fees is untimely.

         Plaintiffs assert that they timely filed their motion because “the judgment of this court arguably set aside the 14-day requirement, instead mandating that the parties attempt to negotiate ‘a reasonable attorney's fee.'” Plaintiffs' Reply To FCA U.S. LLC's Opposition To Plaintiffs' Motion For Award Of Costs And Attorneys' Fees And Opposition To FCA U.S. LLC's Cross-Motion For Setoff (Doc. #100) filed January 18, 2019 at 1. Plaintiffs also assert that Fed.R.Civ.P. 54(d)(2)(D) “expressly defers to local rules” and that the consult and confer requirement of D. Kan. Rule 54.2 “supplants” the 14-day deadline of Fed.R.Civ.P. 54(d)(2)(B)(i). Id. at 2. The Court addresses plaintiffs' arguments in turn.

         I. Clerk's Entry Of Judgment Did Not Set Aside 14-Day Deadline

         As noted, pursuant to plaintiffs' acceptance of defendant's offer, on November 5, 2018, the Clerk entered judgment in this case stating that “judgment is entered in favor of plaintiffs in the amount of $5, 000.00, plus taxable costs accrued as of September 18, 2018 and a reasonable attorneys' fee as agreed to by the parties; or absent an agreement, determined by the Court.” Judgment In A Civil Case (Doc. #94). Plaintiffs assert that the Clerk's entry of judgment “arguably” relieved them from the 14-day deadline set forth in Fed.R.Civ.P. 54. Plaintiffs' Reply (Doc. #100) at 1. Plaintiffs' argument lacks merit. The Clerk's general statement that the parties should attempt to negotiate a reasonable fee did not sub silencio relieve them of their obligation to comply with a Federal Rule.[5]

         II. D. Kan. Rule 54.2 Does Not Supplant Fed.R.Civ.P. 54

         Plaintiffs assert that Fed.R.Civ.P. 54(d)(2)(D), “expressly defers to local rules” and that the consult and confer requirement of D. Kan. Rule 54.2 “supplants” the 14-day deadline of Fed.R.Civ.P. 54. Plaintiff's Reply (Doc. #100) at 2. Plaintiffs cite no Tenth Circuit authority for this proposition. The sole case which plaintiffs cite is Crue v. Aiken, 370 F.3d 668, 680-81 (7th Cir. 2004), in which the Seventh Circuit recognized that local rules may modify the requirements of Fed.R.Civ.P. 54 and that the local rules of the Central District of Illinois extended the deadline for filing attorney's fee petitions to 30 days after entry of judgment. The Seventh Circuit held that the district court did not abuse its discretion by accepting a one-day late fee petition due to excusable neglect. Crue, 370 F.3d at 680-81. While a court by local rule may modify the 14-day deadline of Fed.R.Civ.P. 54, the District of Kansas has not done so. See, e.g., Shophar v. Bureau of Alcohol, No. 16-4034-SAC-KGS, 2016 WL 3951748, at *5 (D. Kan. July 22, 2016) (embracing 14-day deadline); Evolution, Inc. v. Suntrust Bank, No. 01-2409-CM, 2005 WL 1936019, at *1 (D. Kan. Aug. 8, 2005) (because defendants waited 30 days after entry of judgment before filing motion, motion untimely under ...


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