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ELFAST v. BTI AMERICAS

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


April 11, 1997

GEORGE H. ELFAST, Plaintiff, against BTI AMERICAS, INC., Defendant.

The opinion of the court was delivered by: KAPLAN

MEMORANDUM OPINION

 LEWIS A. KAPLAN, District Judge.

 Plaintiff moves for an award of attorney's fees pursuant to the Protection of Jurors Employment Act, 28 U.S.C. § 1875 (the "Act"). As the Court concludes that the consent dismissal of this action "without costs" pursuant to a settlement agreement precludes such an award, the motion is denied.

 Facts

 Plaintiff George Elfast brought this action against defendant BTI Americas, Inc. under the Act. The Court appointed Jason Newfield as counsel for Elfast in June 1996. On October 20, 1996, the parties agreed to settle the action for $ 6,500. The settlement agreement contained a general release. Pursuant to the agreement, the parties entered into a stipulation dismissing the action "without costs."

 Discussion

 28 U.S.C. § 1875(d)(2) provides:

 

"In any action or proceeding under this section, the court may award a prevailing employee who brings such action by retained counsel a reasonable attorney's fee as part of the costs. The court may tax a defendant employer, as costs payable to the court, the attorney fees and expenses incurred on behalf of a prevailing employee, where such costs were expended by the court pursuant to paragraph (1) of this subsection."

 That a party may "prevail" through settlement of litigation is unquestioned. See Maher v. Gagne, 448 U.S. 122, 65 L. Ed. 2d 653, 100 S. Ct. 2570 (1980). The issue at bar is whether, under Section 1875(d)(2), the Court may award a reasonable attorney's fee after a settlement pursuant to which the action has been dismissed "without costs."

 Although there are no cases directly on point, a number of courts have considered applications for awards of attorney's fees under 42 U.S.C. § 1988(b) following the settlement of a case. That statute, in language similar to Section 1875(d), reads in relevant part: "In any action or proceeding to enforce [selected provisions of Title 42], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."

 The Second Circuit has suggested that a settlement agreement under Section 1988(b) which uses broad release language precludes attorney's fees. In Brown v. General Motors Corp., 722 F.2d 1009 (2d Cir. 1983), the court suggested that "the broad language of the release . . . accompanied by a stipulation that the case will be dismissed 'without costs to any party' is, absent circumstances indicating otherwise, intended to settle all claims involved in the particular litigation, including a claim for attorney's fees." Id. at 1012. When "no showing or offer of proof that less than a complete settlement of all claims [] was intended . . . the settlement includes any claim for attorney's fees." Id. This holding was reiterated in Valley Disposal, Inc. v. Central Vermont Solid Waste Management District, 71 F.3d 1053, 1058 (2d Cir. 1995) ("a party may express its intent to waive attorney's fees by employing broad release language.") Though the court in Valley Disposal found that the plaintiff did not waive his claim to attorney's fees because the waiver did not attempt to act as a general waiver or use the words "without costs," the court nonetheless was clear in its continuing support of Brown.1

 While the Second Circuit's attorney's fee analysis has yet to be applied to 28 U.S.C. § 1875(d), opinions written under the parallel provisions of 42 U.S.C. § 1988(b) are instructive. "The underlying policy concerns of the counsel fee provisions in civil rights actions are virtually indistinguishable from those upon which § 1875(d) rests." Segal v. Gilbert Color Systems, Inc., 746 F.2d 78, 86 (1st Cir. 1984). The settlement agreement signed by Elfast, like the agreement in Brown, goes out of its way to exclude any liability other than the agreed settlement payment: "the purpose of entering into this Settlement Agreement is to have no further liability and to incur no further judgements, liens, executions or expenses in connection with . . . the subject matter of the Action, other than the [$ 6,500]." (Catalano Aff. Ex. A) The stipulation of dismissal, as in Brown, further provided that the action was dismissed "without costs."

 Plaintiff has offered no persuasive reason why a claim for attorney's fees brought under Section 1875(d) should be treated differently than a similar claim brought under Section 1988(b). *fn2" Moreover, permitting recovery of attorney's fees on top of a settlement in these circumstances would undermine the intent of the parties in settling their case. The language of the settlement agreement evidences BTI's clear desire to preempt future claims revolving around the same matter. The emphatic demonstration of this desire in both the agreement and subsequent stipulation suggests that no reasonable interpretation of the settlement would permit both agreement to its terms and pursuit of further action.

 Conclusion

 The motion is denied.

 SO ORDERED.

 Dated: April 11, 1997

 Lewis A. Kaplan

 United States District Judge


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