if true, did not negate enforceability of agreement, since agreement "contained not even a hint" that terms of settlement were subject to client's ratification).
Defendants also contend that plaintiffs were supposed to provide them with releases from liability. That too, however, is completely absent from the stipulation and from my order. Furthermore, plaintiffs state that although neither the stipulation nor my order obligates them to give releases to defendants, they are willing to do so upon payment of the $ 10,000 by defendants.
In short, both the stipulation of settlement and my October 23, 1995 order clearly and unambiguously require defendants to pay plaintiffs $ 10,000 in cash, and plaintiffs are entitled to enforcement of the settlement. Defendants may seek to pursue whatever remedies are available to them against the Fund, but they have presented no reason not to enforce the settlement agreement, much less to vacate it.
In their motion, plaintiffs request the court to enter an order enjoining defendants from failing to pay $ 10,000 to plaintiffs within thirty days. In my view, that is not the best remedy in this case. The court has already ordered defendants to pay plaintiffs $ 10,000, and simply re-ordering them to do so would accomplish little. Instead, I believe it would be wisest to enter judgment for plaintiffs in the amount of $ 10,000. Plaintiffs may then take whatever steps are available to them to enforce the judgment.
Plaintiffs also request interest on the $ 10,000 from November 12, 1995, the original deadline for defendants to pay plaintiffs. Defendants contend that interest would not be proper because plaintiffs agreed to extend defendants' deadline beyond November 12 in order to give the Fund additional time to process the check request and because plaintiffs' counsel needed time to have the plaintiffs' release signed and notarized in Mexico, where plaintiffs reside.
Correspondence between the parties' attorneys does reflect that plaintiffs agreed to accept the $ 10,000 "after November 12, 1995." See Letter from Deborah Schaal, Esq. to Brian Curran, Esq., dated Nov. 8, 1995 (Law Affidavit Ex. B). On February 9, 1996, plaintiffs' attorney wrote to defendant's attorney and stated that plaintiffs "had previously agreed to extend the time from the original agreement, but never contemplated that it would take this long." Affidavit of Michael R. Law, Esq., Ex. A. He told defendants' attorney that "at this point I have to ask that you deliver the $ 10,000 no later than February 19, 1996," and that if the check was not forthcoming by then he would seek to enforce the settlement agreement. Id.
In Wickham Contracting Co. v. Local Union No. 3, Int'l Bhd, of Electrical Workers, 955 F.2d 831 (2d Cir.), cert. denied, 506 U.S. 946, 121 L. Ed. 2d 302, 113 S. Ct. 394 (1992), the Second Circuit discussed the circumstances under which prejudgment interest is appropriate. The court stated that among the factors to consider when determining if there should be an award of prejudgment interest are: "(i) the need to fully compensate the wronged party for actual damages suffered, (ii) considerations of fairness and the relative equities of the award, (iii) the remedial purpose of the statute involved, and/or (iv) such other general principles as are deemed relevant by the court." Id. at 834 (citations omitted).
These considerations suggest that prejudgment interest is appropriate in this case. Plaintiffs have been deprived of $ 10,000 to which they are entitled, and if they had timely received the money they would have been able to earn interest on it. To make them whole, therefore, I find that prejudgment interest is warranted.
I will not, however, award interest from November 12, 1995, as requested by plaintiffs. As the above-quoted correspondence makes clear, plaintiffs did agree to extend the payment deadline beyond that date, to February 19, 1996. I believe that that is the most suitable date from which to calculate interest.
In general, district courts have discretion in deciding what interest rate to use in awarding prejudgment interest. Cefali v. Buffalo Brass Co., 748 F. Supp. 1011, 1025 (W.D.N.Y. 1990). The Second Circuit has not expressly endorsed any particular prejudgment interest rate. Id. Courts in this and other circuits have used various interest rates, including the postjudgment interest rate provided in 28 U.S.C. § 1961(a) [the Treasury bill rate], statutory interest rates, or market rates. See Katsaros v. Cody, 744 F.2d 270, 281 (2d Cir.), cert. denied, 469 U.S. 1072, 83 L. Ed. 2d 506, 105 S. Ct. 565 (1984) (prime rate plus one percent); Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1219-20 (8th Cir.), cert. denied, 454 U.S. 968, 70 L. Ed. 2d 384, 102 S. Ct. 512 (1981) (Missouri statutory rate); Foltz v. U.S. News & World Report Inc., 613 F. Supp. 634, 648-49 (D.C.D.C. 1985) (District of Columbia statutory rate); River Oaks Marine v. Town of Grand Island, 1992 U.S. Dist. LEXIS 18974, No. 89- CV-1016S, 1992 WL 373533 at *7 (W.D.N.Y. Nov. 24, 1992) (adjusted prime rate); Cefali, 748 F. Supp. at 1025 (postjudgment rate).
I find that the rate provided by 28 U.S.C. § 1961(a) is the appropriate rate to apply in this case. Since February 19, 1996, the rate has fluctuated between 4.89 percent and 5.89 percent. Applying an approximate median of 5.4 percent, the amount of interest on $ 10,000 from February 19 to August 21, 1996, is $ 272.22. Plaintiffs are therefore entitled to a total judgment in the amount of $ 10,272.22.
III. Attorney's Fees
Plaintiffs also request an award of attorney's fees for time expended on the motion to enforce the settlement. There is no general rule that attorney's fees should be awarded on a successful motion to enforce a settlement agreement, but a court may award fees in such circumstances under the court's inherent power to award attorney's fees to a successful litigant when the opposing party has acted "in bad faith, vexatiously, wantonly, or for oppressive reasons." Hall v. Cole, 412 U.S. 1, 5, 36 L. Ed. 2d 702, 93 S. Ct. 1943 (1973). In the absence of such behavior, fees are generally not awarded, unless the settlement agreement expressly provides for a fee award. See, e.g., TNT Marketing, Inc. v. Agresti, 796 F.2d 276 (9th Cir. 1986) (affirming award of fees where stipulated judgment provided that prevailing party would be entitled to fees is "suit is brought to enforce or interpret any part of this stipulation or judgment"); Schmidt v. Zazzara, 544 F.2d 412, 414 (9th Cir. 1976) (affirming award of attorney's fees because district court's finding that defendants' "attempt to repudiate the settlement agreement did involve the requisite bad faith so as to make this an exceptional case" was fully justified); GRE Talbot Bird & Co. v. M.V. "Lloyd Maranhao", 1991 U.S. Dist. LEXIS 1499, No. 89 Civ. 5861, 1991 WL 19821 (S.D.N.Y. Feb. 8, 1991) (denying request for attorney's fees where defendant's failure to pay plaintiff pursuant to settlement agreement was result of its financial difficulties, not bad faith); Atwell v. U.S. Air, 1990 U.S. Dist. LEXIS 14494, No. 89-4786, 1990 WL 167955 (E.D.Pa. Oct. 29, 1990) (denying request for attorney's fees where defendant's delay in payment under settlement agreement was not done in bad faith); Vari-O-Matic Machine Corp. v. New York Sewing Machine Attachment Corp., 629 F. Supp. 257, 259 (S.D.N.Y. 1986) (awarding attorney's fees to plaintiff on successful motion to enforce settlement, since defendant had acted in bad faith in requiring plaintiff to file motion); Howard v. Chris-Craft Corp., 562 F. Supp. 932, 940-41 (E.D.Tex. 1982) (denying fees on successful motion to enforce settlement agreement on grounds that defendants' repudiation of agreement was not done in bad faith).
In the case at bar, I find that the facts here do not show the requisite bad faith on defendants' part to justify an award of attorney's fees. Although defendants are obligated to pay plaintiffs $ 10,000, defendants apparently did not anticipate their difficulties with the Fund, and in view of these circumstances, I will deny plaintiffs' request for attorney's fees.
Plaintiffs' motion to enforce the settlement agreement (Item 43) is granted in part and denied in part. The Clerk of the Court is directed to enter judgment against defendants and in favor of plaintiffs in the amount of $ 10,272.22.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
August 22, 1996.
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