Among the factors considered in determining whether the oral agreement is usually reduced to writing or placed on the record are the complexity of the agreement, see Ciaramella, 131 F.3d at 326, and any prior practice of the parties in similar cases. Here, the agreement was exceedingly simple. Conrail agreed to pay Sorensen $ 7,500 in return for a release from liability and a dismissal of this case with prejudice. Compare Ciaramella, 131 F.3d at 326 (unenforced oral agreement spanned eleven pages of text in written draft and various terms extended into perpetuity) with Hartford Fire Ins. Co., 1997 WL 790578 (enforced oral agreement required only that defendant pay plaintiff $ 26,000 in settlement of plaintiff's claim).
Moreover, the agreement here was of the type made orally by both Feedore and Baker in past cases similar in nature to this. Baker testified that he personally settled cases for Conrail brought by employees on similar terms without commitment to writing or placement on the record approximately twenty-five times a year. Feedore testified that in his view the August 1 verbal agreement was a "complete agreement" and that in ten years of practice, he had settled approximately fifty similar cases by verbal agreements containing similar terms without commitment to writing or placement on the record.
For both reasons, then, this factor weighs in favor of Conrail.
The consideration of these factors is intended to provide "significant guidance" in determining whether Sorensen and Conrail intended to be bound by the oral agreement between Feedore and Baker in the absence of a document executed by both sides. Ciaramella, 131 F.3d at 323. Analyzing the record in this case in light of the four factors considered above, that record clearly and convincingly demonstrates that with Sorensen's approval, Feedore and Baker entered into an oral agreement to settle this case by which both Sorensen and Conrail intended to be bound. Conrail's motion to enforce that agreement, therefore, must be granted.
C. Costs and Fees
In its motion filed August 29, 1997, Conrail moved for enforcement of the settlement agreement and "for such other and further relief as this Court deems just and proper." Docket No. 17. By letter dated September 8, 1997, Conrail's counsel requested that any order granting its motion also include allowance for its costs and attorney's fees incurred in connection with this motion.
Excluding attorney's fees, Conrail is entitled to costs incurred after August 12, 1997 in making and litigating this motion. See 28 U.S.C. §§ 1920, 1924.
No statutory authority appears for the granting of attorney's fees here. As a matter of equity, however, such fees may be allowed if a party has acted in bad faith, vexatiously or wantonly. See Chambers v. NASCO, Inc., 501 U.S. 32, 45-46, 115 L. Ed. 2d 27, 111 S. Ct. 2123 (1991); Int'l Chem. Workers v. BASF Wyandotte Corp., 774 F.2d 43, 47 (2d Cir. 1985); Int'l Bhd. of Elec. Workers, Local 910 v. Roberts, 992 F. Supp. 132, 1998 WL 15138, at *5 (N.D.N.Y. Jan. 5, 1998) (McAvoy, C.J.). The fact that a party prevails on a particular motion does not automatically entitle that party to recover attorney's fees. See Int'l Bhd. of Elec. Workers, 1998 WL 15138, at *5 (attorney's fees denied to prevailing party); Hartford Fire Ins. Co., 1997 WL 790578, at *2 (same).
Here, although Sorensen's evidence and arguments have been rejected in material respects, there is insufficient evidence to conclude that Sorensen acted in bad faith, vexatiously or wantonly. This conclusion is further supported by the fact that Sorensen defended this motion pro se for most of its pendency. Cf. Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994)("Recognizing that the [plaintiffs] were acting pro se, the district court should have shown them special solicitude . . . ."). Accordingly, Conrail's application for costs, excluding attorney's fees, is granted.
For the reasons stated above, it hereby
1. Conrail's motion to enforce the oral settlement agreement of August 1, 1997 is GRANTED ;
2. Conrail's request for allowance of costs incurred in connection with this motion is GRANTED to the extent that Conrail shall be allowed the costs, excluding attorney's fees, which it incurred in connection with the making and litigation of this motion on and after August 12, 1997;
3. In accordance with paragraph 2 above:
a. On or before February 6, 1998, Conrail shall file and serve a bill of costs for this motion in accordance with 28 U.S.C. §§ 1920 and 1924;
b. On or before February 20, 1998, Sorensen shall file and serve any opposition to Conrail's bill of costs; and
c. The question of the amount of costs awarded to Conrail shall be taken on submission without oral argument; and
4. Upon a determination of the amount of costs to be awarded to Conrail, an order will be entered directing Conrail to deliver to Sorensen a check in the amount of $ 7,500 less the amount of costs awarded to Conrail and, upon the filing of an affidavit that said check has been delivered to Sorensen, a further order will be entered dismissing this action with prejudice in accordance with the oral settlement agreement of August 1, 1997.
IT IS SO ORDERED.
DATED: January 28, 1998
Albany, New York
David R. Homer
UNITED STATES MAGISTRATE JUDGE