The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
Plaintiffs in this case challenged the demutualization of Metropolitan Life Insurance Company ("MetLife") on constitutional grounds, suing pursuant to 42 U.S.C. § 1983. This Court dismissed the complaint, holding that plaintiffs had failed to allege the requisite state action and, in any case, that their constitutional claims lacked merit.*fn1 The Court of Appeals affirmed on the state action ground without reaching plaintiffs' other contentions.*fn2 MetLife now moves for attorneys' fees pursuant to 42 U.S.C. § 1988 as a prevailing party. Plaintiffs resist, contending that the motion is untimely, foreclosed by the mandate rule, and in any case without merit.
Judgment dismissing the amended complaint was entered on July 11, 2001. Plaintiffs filed a notice of appeal on July 27, 2001. On August 2, 2001, twenty-two days after entry of judgment, MetLife moved for attorneys' fees. In an October 17, 2001 order, the Court denied the motion without prejudice to renewal within fourteen days following entry of the appellate mandate. The mandate was entered on February 27, 2003. The renewed motion was filed eight days later, on March 7, 2003.
Federal Rule of Civil Procedure 54(d)(2)(B) provides in relevant part that "[u]nless otherwise provided by statute or order of the court, the motion [for attorneys' fees] must be filed and served no later than 14 days after entry of judgment. . . ." Rule 6(b)(2) provides in relevant part that the Court may enlarge certain time periods afforded under the rules "upon motion made after the expiration of the specified period . . . where the failure to act was the result of excusable neglect. . . ."
Plaintiffs argue that the renewed motion for attorneys' fees is untimely because:
1. The initial motion was filed twenty-two days
after the entry of judgment and thus beyond the
fourteen day period provided in Rule 54(d)(2)(B);
2. In any case, the motion was filed after the
filing of the notice of appeal supposedly divested
this Court of jurisdiction to pass on MetLife's
3. MetLife never moved for enlargement of the
fourteen day period and, in any case, never made a
showing of excusable neglect;
3. The pendency of the appeal, the lack of a motion
for extension of the fourteen day period, and the lack
of a showing of excusable neglect negate the extension
of time implicit in the October 17, 2001 order.
This argument in most respects is utterly frivolous.
1. The Effect of the Notice of Appeal
To begin with, the filing of the notice of appeal quite did not divest this Court of jurisdiction to pass on the initial motion for attorneys' fees. To be sure, "[t]he filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal."*fn3 As the Court of Appeals has said however, "[t]he divestiture of jurisdiction rule is . . . not a per se rule. It is a judicially crafted rule rooted in the interest of judicial economy, designed `to avoid confusion or waste of time resulting from having the same issues before two courts at the same time.'"*fn4 The touchstone is efficiency.*fn5
There is simply no reason to suppose that the filing of a notice of appeal from a final judgment ousts the district court of jurisdiction to determine a motion for attorneys' fees. Indeed, the Supreme Court — in a decision cited by plaintiffs — has made clear that an application for attorneys' fees is a collateral issue independent of the merits which the court may consider even years after the principal suit is over.*fn6 This of course implies that an appeal on the merits does not oust the district court of jurisdiction over such a motion. And if there were any doubt on the matter, it would have been eliminated by the 1993 Advisory Committee Note to Rule 54(d)(2), which specifically noted that a district court remains free, notwithstanding an appeal from a judgment on the merits, to award attorneys' fees during the pendency of the appeal and, of special importance to this case, to defer such a motion until the appeal is decided:
"Filing a motion for fees under this subdivision does not affect the finality or
the appealability of a judgment, though Revised Rule
58 provides a mechanism by which prior to appeal the
court can suspend the finality to resolve a motion for
fees. If an appeal on the merits of the case is
taken, the court may rule on the claim for fees, may
defer its ruling on the motion, or may deny the motion
without prejudice, directing under subdivision
(d)(2)(B) a new period for filing after the appeal has
been resolved. A notice of appeal does not extend the
time for filing a fee claim based on the initial
judgment, but the court under subdivision (d)(2)(B)
may effectively extend the period by permitting claims
to be filed after resolution of the appeal."