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Jamel Duncan v. the City of New York

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


May 30, 2012

JAMEL DUNCAN,
PLAINTIFF,
v.
THE CITY OF NEW YORK, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: James Orenstein, Magistrate Judge:

MEMORANDUM AND ORDER

The defendants have moved for an award of costs, including reasonable attorney's fees, arising from two conferences on February 1 and 2, 2012, that did not proceed because the plaintiff failed to appear and because his retained counsel refused to proceed in his absence. See Docket Entry ("DE") 17 (minute entry for February 1 conference); DE 20 (corrected minute entry for February 2 conference); DE 19 (defendants' letter concerning bill of costs); DE 21 (same).

I initially expressed the view that some such relief was appropriate under the circumstances that then obtained: the plaintiff after having orally agreed to a settlement (see DE 13; DE 14), had purported to withdraw from that agreement and requested a conference with me (see DE 15); the defendants had requested enforcement of the oral agreement (see DE 16), and I had scheduled a conference to discuss the matter. See Order dated January 25, 2012 (scheduling conference for February 1); DE 17 (rescheduling conference for February 2 due to plaintiff's failure to appear on February 1). Under those circumstances, the plaintiff's failure either to appear in person or to agree to participate through counsel had caused the defendants' counsel to incur the costs of appearing twice in an unsuccessful attempt to be fully heard at a conference the plaintiff himself had requested.

Subsequent developments, however, have persuaded me that an award of costs is no longer appropriate. First, on March 6, 2012, following an appearance the previous day before Chief Judge Amon, the defendants withdrew their opposition to the plaintiff's motion to vacate the settlement agreement and instead moved for judgment on the pleadings. DE 24. Had the defendants made that decision sooner, the conferences giving rise to the motion for costs would have been unnecessary. Second, on May 14, 2012, the court granted the defendant's motion for judgment on the pleadings and dismissed the Complaint. DE 35. The Clerk has issued a judgment in favor of the defendants and the case is now closed. See DE 36. Under such circumstances -- where the plaintiff can recover no damages and the defendants have obtained an outcome more advantageous than the one they had hoped to secure at the abortive conferences in February -- I conclude that an award of costs against the plaintiff would not serve the interest of justice. In reaching that conclusion, I need not and do not express any view as to either the propriety of the specific amount the defendants sought or the plaintiff's objections to that amount. See DE 22 (plaintiff's objections); DE 25 (same).

For the reasons set forth above, I deny the defendants' motion for costs, including reasonable attorney's fees, arising from their participation in conferences before me on February 1 and 2, 2012.

SO ORDERED.

JAMES ORENSTEIN U.S. Magistrate Judge

20120530

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