United States District Court, S.D. New York
October 6, 2005.
FIRE & CASUALTY INSURANCE COMPANY OF CONNECTICUT Plaintiff,
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
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.
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.
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
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.