Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

FIRE & CAS. INS. CO. OF CONN. v. 2207 7th AVENUE RESTAURANT

United States District Court, S.D. New York


October 6, 2005.

FIRE & CASUALTY INSURANCE COMPANY OF CONNECTICUT Plaintiff,
v.
2207 7TH AVENUE RESTAURANT CORP., d/b/a JIMMY'S UPTOWN and CRAIG WHITE Defendants.

The opinion of the court was delivered by: HAROLD BAER JR., District Judge

OPINION & ORDER

By Motion dated July 22, 2005, defendant 2207 7th Avenue Restaurant Corp. d/b/a/ Jimmy's Uptown ("Jimmy's") seeks attorneys' fees incurred in defending this declaratory judgment action brought by Fire & Casualty Insurance Company of Connecticut ("FCICC").

I. BACKGROUND

  The facts underlying this dispute are set forth in the Opinion and Order of this Court dated August 29, 2004. See Fire & Casualty Ins. Co. of Conn. v. 2207 7th Avenue Restaurant Corp., 2004 WL 1933781 (S.D.N.Y. August 30, 2004) (Baer, J.). In brief, after defendant White suffered an injury at Jimmy's, FCICC brought this declaratory judgment action seeking to void ab initio an insurance policy that FCICC had issued to Jimmy's based on Jimmy's alleged material misrepresentations in the insurance application. After a one day bench trial held on May 20, 2004, this Court found that the insurance policy issued by FCICC was not void ab initio and remained in full force and effect. Id. The Opinion and Order terminating this action was docketed on August 30, 2004. (Dkt. #16). Almost one year later, on July 22, 2005, Jimmy's brought the instant motion for attorneys' fees.

  II. DISCUSSION

  Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure states that, "[u]nless otherwise provided by statute or order of the court," any motion for attorneys' fees must be made "no later than 14 days after entry of judgment." However, "the fourteen day deadline [embodied in] Rule 54 is not a fatal jurisdictional deadline." Tancredi v. Metropolitan Life Ins. Co., 378 F.3d 220, 227 (2d Cir. 2004). A court may extend the deadline, and entertain a late filed motion for fees, where the moving party has demonstrated "excusable neglect." Id. at 226-28. "To determine whether a party's neglect is excusable, a district court should take into account: (1) the danger of prejudice to the opposing party[;] (2) the length of the delay and its potential impact on judicial proceedings[;] (3) the reason for the delay, including whether it was in the reasonable control of the movant[;] and (4) whether the movant acted in good faith." Id. at 228 (internal quotations omitted).

  Jimmy's delay in bringing this motion was egregious. To excuse his oversight, Jimmy's attorney, Christopher E. Finger, Esq., attests that he was hospitalized for surgery on September 2, 2004, three days after this Court entered judgment in favor of defendants in the declaratory judgment action. (Reply Declaration of Christopher E. Finger, Esq., dated August 13, 2005 ("Finger Reply Dec.") ¶ 38). Finger was unable to return to work until October 2004. (Finger Reply Dec. ¶ 37). Had Jimmy's filed this motion in October 2004, Jimmy's delay may have been excusable, but here seven more months passed before the motion was submitted. To explain this additional delay, Mr. Finger states that he was inexperienced in federal litigation and unaware of the 14 day deadline. (Finger Reply Dec. ¶¶ 39-40).*fn1

  As the Second Circuit noted in Tancredi, Rule 54(d)(2)(B)'s 14 day deadline serves several important purposes. The deadline "provide[s] notice of the fee motion to the non-movant before the time to appeal expires; . . . encourage[s] a prompt ruling on fees to facilitate a consolidated appeal . . . and . . . [allows for the resolution] of fee disputes efficiently, while the services performed are freshly in mind." Tancredi, 378 F.3d at 227 (internal quotation omitted). "Allowing district judges to extend the deadline for filing a motion for attorneys' fees without any showing of `excusable neglect' would impede these efficiency and fairness goals." Id.

  Ignorance of procedural rules does not excuse a failure to comply. A finding that Mr. Finger's delay constitutes excusable neglect would substantially dilute Rule 54(d)(2)(B)'s deadline provision.*fn2 Therefore, Jimmy's motion for fees must be denied. II. CONCLUSION

  For the foregoing reasons, Jimmy's motion for attorneys' fees is hereby DENIED. The Clerk of the Court is directed to close this motion.

  IT IS SO ORDERED.

20051006

© 1992-2005 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.