damages to be proved at trial, the plaintiffs must make a motion for
attorneys' fees in full compliance with Rule 54.
1. The Time Limitations of Rule 54
Rule 54 provides in pertinent part that "[u]nless otherwise provided by
statute or order of the Court, the motion [for attorney's fees] must be
filed and served no later than 14 days after entry of judgment. . . ."
Fed.R.Civ.P. 54(d)(2)(B). It is only a final judgment that starts the
fourteen day filing period. Fed.R.Civ.P. 54(a) ("`Judgment' as used in
these rules includes a decree and any order from which an appeal
lies."). See also Weyant v. Okst, 198 F.3d 311, 314 (2d Cir. 1999). "A
judgment is said to be final if it conclusively determines the rights of
the parties to the litigation and leaves nothing for the court to do but
execute the order or resolve collateral issues." Weyant, 198 F.3d at 314
A plaintiff's acceptance of a Rule 68 offer of judgment constitutes a
final judgment. See Bowles v. Schmitt & Co., 170 F.2d 617, 620 (2d Cir.
1948) (stating that the acceptance of a Rule 68 offer of judgment is a
final judgment); see also Chambers v. Manning, 169 F.R.D. 5, 8 (D.Conn.
1996) (same); Williams v. J.C. Penny Co., Inc., No. 86-8497, 1991 WL
150617, at *1 (S.D.N Y July 30, 1991) ("Under Rule 68 of the Federal
Rules of Civil Procedure, a party may compromise a claim by offering a
settlement to be entered against it in a form of a final judgment.").
In this case, the offer of judgment accepted and filed by the
plaintiffs conclusively determined the rights of the parties in this
action. In particular, the offer of judgment fully satisfied the claims
for overtime wages and unused vacation time. See Offer of Judgment
entered on January 8, 2002 ("Such offer is for the settlement of the
cumulative substantive claims of both Plaintiffs."). In addition, the
Court closed the case based upon the Clerk of the Court's entry of the
acceptance of the Rule 68 offer. See Williams, 1991 WL 150617, at *1 ("By
operation of [Rule 68] . . ., if the offer is accepted, all claims are
settled and the case is concluded."). Accordingly, the plaintiff's
acceptance of the Rule 68 offer of judgment constitutes a final
Once a final judgment is entered, a plaintiff has fourteen days to file
and serve a motion for attorneys' fees or she is time-barred.
Fed.R.Civ.P. 54(d)(2)(B). See also Weyant, 198 F.3d at 314; In re Texaco
Inc. Shareholder Derivative Lit., 123 F. Supp. d 169, 171 (S.D.N.Y.
2000); Arroyo Lopez v. Nuttall, 25 F. Supp.2d 407, 410 (S.D.N.Y. 1998);
Straight v. Bermuda Star Line, Inc., No. 91-5356, 1996 WL 3121112, *1
On January 8, 2002, the Clerk of the Court entered the Rule 68 offer of
judgment. As such, the plaintiffs were required to file and serve a
motion for attorneys' fees by January 22, 2002. This, the plaintiffs did
not do. Rather, the plaintiffs filed a motion for attorneys' fees on
February 27, 2002. Accordingly, the plaintiffs are time-barred, unless a
statute or order of the Court provides otherwise.
Neither the FLSA, the New York Codes, Rules and Regulations for the
Department of Labor nor the New York Labor Law extend the fourteen day
time-period to file a motion for attorneys' fees. Also, no order of the
Court extends the fourteen days for the plaintiffs to file such a
motion. In addition, the Rule 68 offer of judgment provides in pertinent
part: "Said offer does not include costs and attorney's fees accrued to
date. Such costs and attorney's fees are only payable to the extent same
may be ordered by the Court." See Offer of Judgment entered on January
8, 2002. As such, the Rule 68 offer of
judgment does not alter the
requirement that the plaintiffs seek attorneys' fees in compliance with
Although the plaintiffs bring this motion under Rule 54, they now argue
in their reply brief that Rule 54 does not apply and thus they are not
held to the time limitations in the rule. This argument has no merit. In
addition, the plaintiffs do not provide any justifiable excuse for
failing to comply with the time limitations of Rule 54. Accordingly, the
motion for attorneys' fees is denied.
B. As to the Costs
Rule 54.1 provides in pertinent part that:
Within thirty (30) days after the entry of final
judgment, . . . unless this period is extended by the
court for good cause shown, any party seeking to
recover costs shall file with the clerk a request to
tax costs annexing a bill of costs and indicating the
date and time of taxation. . . . Any party failing to
file a request to tax costs within this thirty (30)
day period will be deemed to have waived costs.
S.D.N.Y. & E.D.N.Y. Loc. Civ.R. 54.1(a). In this case, the Clerk of the
Court entered the final judgment on January 8, 2002. On February 27,
2002, the plaintiffs filed a motion to recover costs in the amount of
$185, which has since been supplemented to $200. Because the plaintiffs
failed to comply with the thirty day time limitation and they show no
good cause for this failure, the plaintiffs have waived their right to
costs. Accordingly, the motion for costs is denied.
Based upon the foregoing, it is hereby
ORDERED, that the motion for attorneys' fees is DENIED; and it is
ORDERED, that the motion for costs is also DENIED.
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