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Doe v. Terhune

November 29, 2000


The opinion of the court was delivered by: Rodriguez, J.


This matter is before this court on the motion of plaintiff John Doe for costs and attorneys' fees in the amount of $65,495.63. For the reasons contained herein, the motion will be granted in part and denied in part.


On December 31, 1996, plaintiff filed an emergency application seeking to prevent the New Jersey Bureau of Parole from notifying his employer of plaintiff's parole status following a sexual offense conviction. Invoking federal question jurisdiction under 28 U.S.C. § 1331 and civil rights jurisdiction under 28 U.S.C. § 1343(a), plaintiff sued for equitable relief under 42 U.S.C. § 1983. This court granted a temporary restraining order on notice and, on December 29,1997, granted a preliminary and permanent injunction.

Defendants appealed to the Third Circuit Court of Appeals, fully arguing and briefing the appeal. During the pendency of the appeal, the injunction remained in force.

While awaiting a ruling from the Third Circuit, plaintiff's period of parole ended. Plaintiff notified the Third Circuit that the period of parole ended, suggesting that the Third Circuit find the appeal moot. Over defendants' objection, that the appeal fell within the capable of repetition yet evading review exception to the mootness doctrine, the Third Circuit dismissed the appeal for mootness on April 20, 1999.

After the dismissal, plaintiff filed with the Third Circuit a consolidated application for costs including attorneys' fees covering all services. Defendant opposed the application. On August 30, 2000, the Third Circuit denied the application without prejudice to an application for a fee allowance in this court. On September 19, 2000, plaintiffs filed the present application for costs including attorneys' fees for work both at the district court level and on the appeal. Defendant opposes the application in its entirety and, alternatively, opposes the amount of fees requested.


Title 42 U.S.C. §1988 provides that, in federal civil rights actions, "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." A court's assessment of a fee application under § 1988 involves a three-step analysis. As a threshold matter, a plaintiff must qualify as a "prevailing party" within the meaning of the statute. Next, the court must calculate the "lodestar" by multiplying the reasonable hourly rate by the number of hours reasonably expended on the litigation. Blum v. Stenson, 465 U.S. 886, 888 (1984). Finally, the court must determine whether the lodestar requires an adjustment "to account for other considerations that have not yet figured in the computation, the most important being the relation of the results obtained to the work done." Dillard v. Greensboro, 213 F.3d 1347, 1353 (11th Cir. 2000) (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

A fee applicant bears the burden of proving with satisfactory evidence the reasonableness of the amount requested. Hensley, 461 U.S. at 437. Although a district court has broad discretion in determining the amount of an award, it must articulate the reasons underlying its decisions to allow for appellate review. Hensley, 461 U.S. at 434; Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 199-200 (3d Cir. 2000); Daggett v. Kimmelman, 811 F.2d 793, 797 (3d Cir. 1987).

Defendants argue that, as a preliminary matter, plaintiff failed to file his application for attorneys' fees for work done in this court within the time required by Federal Rule of Civil Procedure 54 and Local Civil Rule 54.2. Defendants next argue that plaintiff did not acquire "prevailing party" status in the appeal of this court's injunction, thus he cannot recover attorneys' fees for work performed at the appellate level. Finally, defendants contend that, if this court grants plaintiff any attorneys' fees, it must reduce the fees requested by plaintiff.

A. Work Performed at the District Court Level

For the reasons contained herein, the portion of plaintiff's motion for attorneys' fees for work performed before this court will be denied.

Under Federal Rule of Civil Procedure 54, a prevailing party must file a motion for attorneys' fees "no later than 14 days after entry of judgment," unless statute or order of the court modify the time. See Fed. R. Civ. P. 54(d)(2)(B). The advisory committee notes to the 1993 amendments to Federal Rule 54 explain the rational for imposing a time requirement.

One purpose of this provision is to assure that the opposing party is informed of the claim before the time for appeal has elapsed. . . .

Prompt filing affords an opportunity for the court to resolve fee disputes shortly after the trial, while the services performed are freshly in mind. It also enables the court in appropriate circumstances to make its ruling on a fee request in time for any appellate review of a dispute over fees to proceed at the same time as review on the merits of the case. Fed. R. Civ. P. 54 Advisory Comm. Notes to 1993 Amends.

The Local Civil Rules for the District of New Jersey modify the 14-day time requirement in Federal Rule 54.2.

In all actions in which a counsel fee is allowed by the Court or permitted by statute, an attorney seeking compensation for services or reimbursement of necessary expenses shall file with the Court an affidavit within 30 days of the entry of judgment or order, unless extended by the Court . . . . L. Civ. R. 54.2(a).

Defendants argue that Federal Rule 54 and, thus, Local Rule 54.2(a) require plaintiff to file his request for attorneys' fees under § 1988 within 30 days of this court's issuing the permanent injunction. At the latest, that date was February 14, 1998. *fn1 Because the plaintiff did not file this application for costs including attorneys' fees until September 19, 2000, defendants contend that Local Rule 54.2 bars plaintiff from seeking attorneys' fees for work performed before this court.

On the other hand, plaintiff argues that the filing of an appeal should work to toll the 30-day time period in Local Rule 54.2. Defendants filed an appeal of the injunction 8 days after this court's clarification that the December 27, 1997 order was a permanent injunction. That, plaintiff contends, would leave him 22 days following final disposition by the Third Circuit in which to file his application for costs including attorneys' fees. The Third Circuit dismissed the fee application on August 30, 2000, and plaintiff filed this instant application on September 19, 2000. Thus, under plaintiff's proposed reading of Local Rule 54.2, the application was filed within the 30-day time requirement, with 2 days to spare.

This court must discern the meaning of its own rules. See Charles Alan Wright et al., Federal Practice and Procedure § 3153, p. 533 (2d ed. 1997) ("[T]he court that adopted a local rule is the best judge of its meaning."). In the only discovered case addressing this issue within the District of New Jersey, Judge Irenas, in an unpublished opinion, disagreed with plaintiff's contention. See Oberti v. Board of Educ., No. 91-2818, 1995 WL 428635 (D.N.J. July 17, 1995). *fn2

Rule [54.2] *fn3 does not refer to the consequences of filing an appeal. Moreover, the filing of an appeal does not affect our jurisdiction to entertain a fee request. In the absence of express language in [Rule 54.2] tolling the period for filing fee applications upon the filing of an appeal, we understand the rule to require the submission of fee application within 30 days after judgment or order regardless of filing an appeal. Id. at *3, n.7.

Additionally, caselaw from other jurisdictions supports the decision of Judge Irenas. See, e.g., Quick v. Peoples Bank, 993 F.2d 793, 798-99 (11th Cir. 1993) (affirming district court's denial of attorneys' fees because the request was not brought within the local rules time requirement); Jackson v. Beard, 828 F.2d 1077, 1078-79 (4th Cir. 1987) (filing of post-judgment motions does not toll 20-day time period in which to request attorneys' fees); Zentek Corp. v. Internal Revenue Serv., 596 F. Supp. 324, 326 (E.D. Mich. 1984) (denying motion for attorneys' fees brought outside of 30 day local rule requirement). But see Lynn v. West, No. 99-00577, 2000 WL 1229752, at *2-*3 (M..D.N.C. Aug. 8, 2000) (requiring litigant who prevails at a district court to wait until resolution of the case on appeal before seeking costs; deciding not to address attorneys' fees specifically; but expressing, "When a party prevails at the district court level, the better view appears to be that the clock begins to run with entry of the primary judgment, regardless of whether post-trial motions are filed or appeal is taken.").

Plaintiff argues that he had an honest belief that he could wait until final decision on defendants' appeal under Local Rule 54.2 because there is no mention of appeal, whereas, "in striking contrast," Local Civil Rule 54.1, which deals with applications to the court for costs, specifies a 30-day time limit, "whether or not an appeal has been filed." See L. Civ. R. 54.1(a). "Plaintiff therefor understood that the difference in the phrasing of the two rules reflected the traditional understanding that a Notice of Appeal from a final decision divests the district court of power to adjudicate, including power to adjudicate a fee application." (Pl.'s Reply Br. at 3).

However, in early 1998, the time that plaintiff would have made this decision, the law was clear: a district court is not divested of jurisdiction to determine a fee application while the merits of a case are on appeal. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988); White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445, 452 n.15 (1982); Napier v. Thirty or More Unidentified Fed. Agents, Employees or Officers, 855 F.2d 1080, 1089 (3d Cir. 1988); Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 97 (3d Cir. 1988); Beckwith Mach. Co. v. Travelers Indem. Co., 815 F.2d 286, 291 n.8 (3d Cir. 1987); West v. Keve, 721 F.2d 91, 95 n.5 (3d Cir. 1983).

This court also finds the Advisory Committee Notes for the 1993 amendment to Federal Rule 54 persuasive. For this court to hold that the 30-day time requirement in Federal Rule 54 and Local Rule 54.2 allows for tolling while a party appeals a decision would defeat the rational behind the rules. A defendant would not know of the claim for attorneys' fees before filing the appeal, indeed the claim would not be filed until after the appeal. The fee issue would not be resolved shortly after trial; it would not be resolved until after the appeal, which can be years after the trial. Finally, appellate review of the merits of the case could not include a review of the fee requests because they would not exist until after an appellate review of the merits. For this court to construe Local Rule 54 in the manner that plaintiff suggests would defeat the rational behind the time requirement.

Accordingly, this court holds that an appeal of a district court's decision to the Third Circuit does not toll the 30-day time requirement in Local Rule 54.2.

Plaintiff was required by local rule to file his request for attorneys' fees for work performed before this court no later than February 14, 1998. He did not make this application until September 19, 2000, over two and one-half years later. As a result, this ...

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