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Trudeau v. Bockstein

August 7, 2008

KEVIN TRUDEAU, ALLIANCE PUBLISHING GROUP, INC., AND SHOP AMERICA (USA) L.L.C., PLAINTIFFS,
v.
MINDY BOCKSTEIN, IN HER OFFICIAL CAPACITY, AND JON SORENSEN, IN HIS OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

By Memorandum-Decision and Order dated February 25, 2008, the court affirmed its earlier grant of summary judgment in favor of the defendants. Pending is the plaintiffs' motion for an award of costs, including attorney's fees, under 42 U.S.C. § 1988. For the reasons that follow, the motion is granted.

II. Facts and Procedural History

The plaintiffs -- to whom the court will refer collectively as "Trudeau" -- brought this action seeking to enjoin the defendants, employees of the New York State Consumer Protection Board (the "CPB"), from contacting cable and broadcast stations and requesting that they refuse to carry advertisements for Kevin Trudeau's book, Natural Cures "They" Don't Want You to Know About (the "Natural Cures book"). In addition to preliminary and permanent injunctive relief, Trudeau sought a declaration that the CPB's threatened action would violate his First Amendment rights.

The case was commenced on August 11, 2005 by the filing of a Complaint accompanied by a motion for a temporary restraining order ("TRO"). (Dkt. Nos. 1 & 2.) By Text Only Order dated August 15, 2005, the court denied Trudeau's application for a TRO, having determined that the ex parte application failed to comply with the Federal Rules of Civil Procedure and the Local Rules. On August 16, 2005, Trudeau filed a renewed motion for a TRO that would have required the CPB to provide Trudeau with at least 72 hours notice prior to contacting cable and/or broadcast stations. (Dkt. No. 6.) This motion, too, was denied. (See Oral Order dated August 30, 2005.)

On August 31, 2005, Trudeau filed a third motion for a TRO. (Dkt. No. 17.) This time, the court granted the TRO pending a hearing on Trudeau's motion for a preliminary injunction. (See Order; Dkt. No. 20.) At a hearing on September 6, 2005, the court granted the motion for a preliminary injunction. The court's Oral Order (which, in essence, simply extended the TRO) enjoined the CPB from: (1) "directly contacting any cable or broadcast station in order to induce such station to refuse to carry, or cease to carry, [Trudeau's] advertisements for the Natural Cures book authored by Kevin Trudeau"; and (2) "publishing or disseminating the letter attached as Exhibit A to the TRO application, or any letter substantially similar in content, as a means of indirectly contacting cable or broadcast stations." (See Oral Order dated September 6, 2005.) In granting this provisional relief, the court found that Trudeau had demonstrated a "sincere, heavy likelihood" of success on the merits. (See Transcript of Proceedings at 16-17, 85, attached as Ex. B to the Hurtado Decl.; Dkt. No. 152.)

On April 23, 2007, the CPB filed a motion for summary judgment on the grounds of, inter alia, Eleventh Amendment immunity, mootness, and lack of irreparable harm. (Dkt. No. 130.) In support of its mootness argument, the CPB proffered the affidavit of Mindy Bockstein, the Chairperson and Executive Director of the CPB. Bockstein represented to the court that "[t]he current CPB administration has no intention of directly contacting cable stations to request that they display a disclaimer prior to airing an advertisement or that they refrain or cease from airing an advertisement." (Bockstein Aff. ¶ 13; Dkt. No. 130.) Additionally, Bockstein represented that in the absence of any complaints, "the CPB does not intend to initiate an investigation or take any other action regarding the infomercials that are currently airing." (Id. at ¶ 14.)

By Memorandum-Decision and Order dated November 30, 2007 (hereinafter "Trudeau I"), the court dismissed Trudeau's Amended Complaint on the grounds of Eleventh Amendment immunity, and dissolved the preliminary injunction. (Dkt. No. 145.)*fn1 Judgment was entered in favor of the CPB. (Dkt. No. 146.) On December 10, 2007, Trudeau filed a motion for reconsideration. (Dkt. No. 147.) In a Memorandum-Decision and Order dated February 25, 2008 (hereinafter "Trudeau II"), the court affirmed the earlier judgment in favor of the CPB, albeit on different grounds. (Dkt. No. 151.)*fn2 The court held that, in light of Bockstein's representations concerning the CPB's intentions, the possibility of future harm to Trudeau was too speculative to warrant the grant of declarative or injunctive relief. (See Trudeau II at 15-24.)

Although Trudeau's claims were ultimately dismissed, he now seeks costs and attorney's fees as a "prevailing party." Trudeau bases his claim to such status on the fact that he "achieved a judicially sanctioned alteration in the parties' legal relationship that afforded [the plaintiffs] the precise relief they sought in filing this action: stopping and preventing the CPB from interfering with the Natural Cures infomercials." (Pl.'s Br. at 7; Dkt. No. 152.)

III. Discussion

A. Timeliness of the Motion

Before addressing Trudeau's status as a "prevailing party," the court must resolve the matter of the timeliness of Trudeau's motion for attorney's fees. Trudeau's motion for reconsideration has added an additional wrinkle to this inquiry. It is the CPB's contention that the time period for seeking attorney's fees began to run upon the issuance of the November 30, 2007 Memorandum-Decision and Order, not the February 25, 2008 Memorandum-Decision and Order. Thus, by the CPB's calculations, Trudeau's motion for an award of attorney's fees is untimely.

The court rejects this argument. The Federal Rules of Civil Procedure provide that a motion for attorney's fees and expenses must "be filed no later than 14 days after the entry of judgment." FED. R. CIV. P. 54(d)(2)(B). The instant motion for fees was filed on March 10, 2008, more than 14 days after the entry of judgment on November 30, 2007. However, the case law establishes that a rigid application of the 14 day deadline ...


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