United States District Court, W.D. New York
DECISION AND ORDER
G. LARIMER United States District Judge.
action arises out of a commercial real estate lease relating
to a retail development in Rochester, New York. On September
7, 2016, the Court entered an Order (Dkt. #56), granting the
motion for judgment on the pleadings filed by defendants
Anthony J. Costello & Son (Spencer) Development, LLC, and
Anthony J. Costello & Son Development, LLC
(“Costello defendants”), and dismissing the
complaint filed by plaintiff Costco Wholesale Corporation
(“Costco”). The Court also denied the motion for
judgment on the pleadings filed by Costco, and issued
declaratory relief in favor of the Costello defendants.
September 21, 2016, the Costello defendants filed a motion
for an award of attorney's fees and costs, pursuant to a
fee-shifting clause in a contract entered into by the
Costello defendants and Costco, relating to the parcel in
question. Section § 11.3 of that contract, titled
“Reciprocal Easement Agreement”
(“REA”), states that
In the event of any action between the [parties] for a breach
of or to enforce any provision or right hereunder, the
non-prevailing [party] in such action shall pay to the
prevailing [party] all costs and expenses, expressly
including, but not limited to, reasonable attorneys' fees
and costs incurred by the successful [party] in connection
with such action, including without limitation all fees and
costs incurred on any appeal from such action or proceeding.
Dkt. #1-2 at 40.
October 30, 2016, Costco filed a notice of appeal from this
Court's judgment, to the Court of Appeals for the Second
Circuit (Dkt. #60.) It appears from the Second Circuit's
docket sheet that the Costello defendants' brief is due
on March 21, 2017. (2d Cir. No. 16-3372, #48.)
has filed papers in this Court in opposition to the Costello
defendants' motion, principally arguing that the Court
should defer deciding the motion until after Costco's
appeal has been decided. I agree.
short, at this point, the Costello defendants have
“prevailed” in this lawsuit, and under the REA,
they are therefore entitled to a fee award. But Costco has
appealed from this Court's judgment, and that appeal is
currently pending before the Second Circuit.
circumstance, the district court has wide discretion to
decide on the best course of action. The Second Circuit has
stated that if one party files a motion for fees, and the
other party takes an appeal on the merits, the district 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.” Tancredi v.
Metro. Life Ins. Co., 378 F.3d 220, 226 (2d Cir. 2004)
(quoting Fed.R.Civ.P. 54(d) Advisory Committee's note).
that discretion, “[c]ourts in this Circuit regularly
defer the award of attorneys' fees or deny the motion
without prejudice pending the resolution of an appeal on the
merits.” Apex Employee Wellness Services, Inc. v.
APS Healthcare Bethesda, Inc., No. 11 CIV. 9718, 2017 WL
456466, at *12 (S.D.N.Y. Feb. 1, 2017) (citing Gill v.
Bausch & Lomb Supplemental Ret. Income Plan I,
6:09-CV-6043, 2014 WL 1404902, at *1 (W.D.N.Y. Apr. 10, 2014)
(“Where the losing party takes an appeal on the merits
of case, the district court has the discretion to defer
ruling on the prevailing party's motion for
Court adopts the same course of action here. As noted, §
11.3 of the REA provides for the recovery of fees and costs
incurred on appeal by the ultimately prevailing party.
Regardless of the outcome of Costco's appeal, then, I see
no prejudice to either side that will be caused by deferring
a ruling on the attorney's fee motion, for now.
Regardless of the outcome of the appeal, the prevailing party
on appeal is likely to seek fees following the Second
Circuit's decision. To avoid dealing with this matter
piecemeal, then, it makes more sense to await the Court of
Appeals' decision. See Apex, 2017 WL 456466, at
*12 (“Deferring a ruling on [the] motion for
attorneys' fees until the Second Circuit resolves [the]
appeal ensures that this Court only has to address the motion
for attorneys' fees by the party that ultimately
prevails”); Truesdell v. Thomas, No.
13-cv-552, 2016 WL 7049252, at *3 (M.D.Fla. Dec. 5, 2016)
(“The better part of wisdom here appears to weigh in
favor of continuing to defer ruling until attorney's fees
and costs can be definitely determined, ” following an
motion for attorney's fees filed by defendants Anthony J.
Costello & Son Development, LLC and Anthony J. Costello
& Son (Spencer) Development, LLC (Dkt. #58) is denied
without prejudice, subject to renewal following a decision by
the Court of Appeals for the Second Circuit on plaintiffs
pending appeal from this Court's Decision and Order
entered on September 7, 2016.
cross-motion (Dkt. #61) for an order dismissing
defendants' motion ...