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BLISSETT v. CASEY

June 18, 1997

DONOVAN BLISSETT, Plaintiff,
v.
SGT. CASEY, SGT. GREENE, TIMOTHY MULHALL, and A. CONNORS, R.N. MEDICAL DEPT., Defendants.



The opinion of the court was delivered by: MCCURN

 Introduction

 Perhaps, with the resolution of this motion for fees by plaintiff Donovan Blissett's attorneys, this protracted litigation, spanning more than fourteen years, will finally come to an end.

 Originally plaintiff Blissett commenced this action pro se. Eventually, on November 5, 1991, the court appointed attorney James J. Burns as plaintiff's pro bono counsel. By order dated January 31, 1996, the court granted attorney Burns' motion to withdraw. *fn1" Thereafter, in March, 1996, plaintiff retained the services of attorneys Stanley L. Cohen and Claudia A. Smith. The record is incomplete as to the exact date and circumstances surrounding plaintiff's retention of attorneys Cohen and Smith. Evidently there was no retainer agreement between plaintiff and those two attorneys, however, because undoubtedly they contemplated that if plaintiff prevailed, they would be compensated in accordance with 42 U.S.C. § 1988. *fn2"

 As their time records indicate, commencing in March, 1996, attorneys Cohen and Smith performed various legal services for plaintiff Blissett, including serving as counsel during the trial of this matter which was conducted between July 1, 1996 and July 8, 1996. Eventually, through the practice of remittitur, plaintiff obtained a $ 22,978.00 judgment.

 Background

 Each of the three attorneys who have variously represented plaintiff Blissett during the course of this litigation are now seeking their fees, and in the case of attorney Cohen, also expenses. Attorney James Burns is seeking a total of $ 45,997.50 in fees. Pl. exh. A (Affidavit of James J. Burns (July 25, 1996) ("Burns Aff."), at 8, P 23. Attorney Burns claims that that figure represents 340.7 hours *fn3" expended in this case multiplied by his regular hourly rate of $ 135.00. *fn4" including time expended making this motion for fees. Id. Seeking compensation at the rate of $ 250.00 per hour attorney Stanley Cohen requests fees totaling $ 38,500.00, plus $ 1,007.00 in expenses. Pl. exh. B (Affidavit of Stanley L. Cohen (Feb. 9, 1997) ("Cohen Aff."), at P 4. Cohen's requested fee is based upon an hourly rate of $ 250.00, multiplied by 154 hours of legal work. Attorney Cohen is not seeking compensation, however, for 31.50 hours of work performed by various law clerks, paralegals and medical experts employed by his firm. Id. at n.1. Nor is he seeking payment for the twenty-four hours he expended assisting in post-trial matters. Id. Plaintiff's third attorney, Claudia Smith, is seeking a total of $ 35,278.13 in fees. Pl. exh. C (Affidavit of Claudia A. Smith (Feb. 13, 1997) ("Smith Aff."), at 5, P 15. But her calculations also are not accurate. Attorney Smith is requesting $ 150.00 per hour for the 236.90 hours she billed for legal services rendered, which includes the 31.50 hours she expended preparing this motion. Id. In addition, she is seeking $ 4,528.13 for 40.25 hours of travel time at the rate of $ 112.50 per hour, or seventy-five percent of her usual $ 150 hourly billing rate. Id. The total of the foregoing is $ 40,063.13, and not $ 35,278.13, as attorney Smith states.

 In opposing this motion, the defendants first assert that it is not timely, and, on that basis alone, the court should decline to award any fees. Second, the defendants contend that although a fee award may be appropriate under 42 U.S.C. § 1988, any such award is limited by section 803(d) of the recently enacted Prisoner Litigation Reform Act of 1995 (the "PLRA" or the "Act"), 42 U.S.C. § 1997e(d) (West Supp. 1997). *fn5" If the court disagrees with the defendants, and finds that the PLRA is not applicable, the defendants next assert that a reasonable hourly rate here is $ 150.00. Finally, the defendants maintain that because the court denied plaintiff's motion for an interlocutory appeal, attorney Smith *fn6" is not entitled to recover fees for preparation of that motion because plaintiff did not prevail thereon. The court will address each of these opposition arguments in turn.

 Discussion

 I. Timeliness

 Judgment in this case was entered on January 28, 1997. Doc. # 190. This attorneys' fee motion was filed with the court on February 21, 1997. Doc. # 192 and # 193. Relying upon Fed. R. Civ. P. 54(d)(2)(B), which provides, in relevant part, "unless otherwise provided by statute or order of the court, [a] motion [for attorneys' fees] must be filed and served no later than 14 days after entry of judgment[,]" the defendants contend that because plaintiff's motion was not filed until twenty-one days after entry of the judgment, the court should deny it as untimely. Invoking Fed. R. Civ. P. 6(b)(2), plaintiff contends that the court should overlook the fact that he did not timely file this attorneys' fee motion because his failure to do so was the result of "excusable neglect." Attorney Smith elaborates that she "inadvertently, . . . miscalculated the time that the motion was due and mailed it to the Court on February 13, 1997 for filing and to the Assistant Attorney General for service the same day." Affirmation of Claudia A. Smith (Mar. 12, 1997), at 1, P 4.

 Rule 6(b)(2) provides in relevant part that "when by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion. . . upon motion made after the expiration of the specified period *fn7" permit the act to be done where the failure to act was the result of excusable neglect [.]" Fed. R. Civ. P. 6(b)(2) (emphasis and footnote added). Rule 6 does not define "excusable neglect." In Pioneer Inv. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993), however, the Supreme Court discussed at some length the concept of "excusable neglect." The Pioneer Court's discussion of excusable neglect was within the context of Bankruptcy Rule 9006(b), which permits bankruptcy courts to allow creditors to file claims after the imposed "bar date," or deadline for filing such claims. Nonetheless, that discussion of excusable neglect is instructive here because the Pioneer Court explicitly referred to Fed. R. Civ. P. 6(b), among other Rules, as also containing the phrase "excusable neglect." Pioneer, 507 U.S. at 391-93, 113 S. Ct. at 1496-97. Indeed, "the [Pioneer ] Court specifically observed that in Fed.R.Civ.P. 6(b), as in Bankruptcy Rule 9006(b) which it was construing, 'there is no indication that anything other than the commonly accepted meaning of [excusable neglect] was intended.'" Pratt v. Philbrook, 109 F.3d 18, 19 n.1 (1st Cir. 1997) (quoting Pioneer, 507 U.S. at 391, 113 S. Ct. at 1496). Moreover, "the language of Rule 9006(b) is almost identical to the language of Rule 6(b)." 44 Liquormart, Inc. v. State of R.I., 940 F. Supp. 437, 440 n. 2 (D.R.I. 1996). Thus, "since Pioneer, courts have concluded the Pioneer standard of 'excusable neglect' should apply to Fed.R.Civ.P. 6(b)." Id. (citations omitted). In following that trend, the First Circuit in Pratt astutely observed that "by construing excusable neglect,' a phrase used through the Federal Civil, Criminal and Appellate Rules of Procedure, Pioneer must be understood to provide guidance outside the bankruptcy context." Id. (emphasis added) (footnotes omitted).

 As the Supreme Court has acknowledged, ""excusable neglect' under Rule 6(b) is a somewhat 'elastic concept' and is not limited strictly to omissions caused by circumstances beyond the control of movant."" LoSacco v. City of Middleton, 71 F.3d 88, 93 (2d Cir. 1995) (quoting Pioneer, 507 U.S. at 392, 113 S. Ct. at 1496). "Rather, [excusable neglect] may encompass delays 'caused by inadvertence, mistake, or carelessness,' . . . , at least when the delay was not long, there is no bad faith, there is no prejudice to the opposing party, and movant's excuse has some merit[.]" Id. (quoting Pioneer, 507 U.S. at 388, and 394-95, 123 L. Ed. 2d 74, 113 S. Ct. 1489 at 1495 and 1498); see also Natural Father and Natural Mother v. Tolbert, 170 F.R.D. 107, 110 (S.D.N.Y. 1997) (internal citations and quotations omitted) ("Excusable neglect encompasses both simple, faultless omissions to act and, more commonly, omissions caused by carelessness[.]"). A determination of excusable neglect will not be overturned on appeal absent a showing of abuse of discretion. LoSacco, 71 F.3d at 93 (citing, inter alia, Lujan v. National Wildlife Fed'n, 497 U.S. 871, 895-98, 110 S. Ct. 3177, 3192-94, 111 L. Ed. 2d 695 (1990)).

 Applying the three factor test articulated by the Pioneer Court to the record presently before it persuades the court that plaintiff Blissett's failure to timely file this motion was the result of excusable neglect. As to the danger of prejudice to the opposing party (here, the defendants), this factor weighs in favor of a finding of excusable neglect. In arguing that this fee motion should be denied as untimely, defendants make absolutely no mention of potential prejudice. What is more, it is difficult to see how there could be any prejudice to the defendants because, by their own admission, they received this fee motion on February 18, 1997. Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Attorney's Fees ("Def. Memo.") at 2. *fn8" Therefore, in keeping with one of the purposes of the fourteen day filing requirement for attorney's fee motions, which "is to assure that the opposing party is informed of the [fee] claim before the time for appeal is lapsed[,]" *fn9" defendants still had ten days from the date of receipt of this motion in which to decide whether or not to file an appeal.

 With respect to the second Pioneer factor, "the length of the delay and its potential impact on the judicial proceedings," *fn10" the court finds that the delay here - whether calculated as two days or ten *fn11" - is relatively insignificant and does not warrant a denial of plaintiff's motion for attorneys' fees. The final Pioneer factor - the reason for the delay in light of the movant's good faith efforts and whether the circumstances were within the movant's reasonable control - "is the pivotal determinant of 'excusable neglect." Tolbert, supra, 170 F.R.D. at 110 (internal quotations and citation omitted). Attorney Smith's miscalculation of the filing and service date for this fee motion is, in this court's opinion, an "omission caused by carelessness," and thus constitutes excusable neglect, *fn12" especially taking into account, as previously mentioned, the fact that the delay here was slight and that there was no prejudice to defendants. Nor is there any evidence in the record of bad faith on Ms. Smith's part; and, there is some, albeit not much, merit to plaintiff's excuse.

 In finding excusable neglect, the court is fully cognizant of case law, which although not relied upon by the defendants herein, *fn13" arguably could support their assertion that this fee motion is untimely. For example, in In re Cosmopolitan Aviation Corp., 763 F.2d 507 (2d Cir. 1995), the Second Circuit stated, "the excusable neglect standard can never be met by a showing of inability or refusal to read and comprehend the plain language of the federal rules." Id. at 515. At first glance that unequivocal language, especially considering the Second Circuit's holding that the district court abused its discretion in granting an extension of time in which to file a notice of appeal, seems to require this court to find that plaintiff Blissett has not shown excusable neglect. A careful reading of Cosmopolitan reveals, though, that the party seeking the extension there had engaged in "truly remarkable bad faith . . . throughout that litigation[,] . . . continually mischaracterizing facts, prior proceedings and the law." Id. at 509. Although the Second Circuit did not specifically cite that bad faith as a basis for reversing the district court's granting of an extension, such conduct undoubtedly influenced that determination.

 Admittedly, the foregoing case law gives the court pause in assessing whether attorney Smith's inadvertent miscalculation is tantamount to excusable neglect. However, because the cases just discussed are factually distinguishable in terms of bad faith, a different result is warranted in this case where no bad faith is evident. Thus, after "taking account of all relevant circumstances surrounding [plaintiff's] omissions," *fn14" and given the Pioneer Court's "forgiving attitude toward instances of 'excusable neglect[,]'" *fn15" in the exercise of its discretion, even though untimely, the court will consider the merits of the fee motion in this fourteen year old case.

 II. Applicability of PLRA

 "On April 26, 1996, the President signed the Omnibus Consolidated Rescissions and Appropriations Act of 1996, . . . , Title VIII of which is the Prison Litigation Reform Act of 1995 ["PLRA"]." Leonard, supra, 88 F.3d at 182-83 (citation omitted). That Act does not designate an effective date. Duamutef v. O'Keefe, 98 F.3d 22, 24 (2d Cir. 1996). Therefore, it is deemed to have become effective on the date the President signed it. See Moates v. Barkley, 927 F. Supp. 597, 598 (E.D.N.Y. 1996) (citation omitted).

 Among other things, section 803 of the PLRA amended 42 U.S.C. § 1997e(d), placing certain limitations upon attorney's fees recoverable in prisoner litigation. In particular, 42 U.S.C. § 1997e(d) provides, in relevant part, as follows:

 
(1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney's fees are authorized under section 1988 of this title, such fees ...

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