United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR
ATTORNEYS' FEES AND COSTS
F.
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE
I.
Introduction
This
action concerns the non-payment of loans by a non-profit
community arts program. Plaintiff Michael Day loaned
approximately $72, 000 to the Community Theater Company of
Andover, Inc., d/b/a ACT Andover. ACT Andover is a community
theater organization operated by defendants Charles and Mark
Gracy. The Gracys purportedly personally guaranteed the loans
on behalf of ACT Andover. However, ACT Andover and the Gracys
were unable to repay the bulk of the loans, precipitating
this suit.
After
discovery, the parties agreed to mediation and entered into a
settlement agreement. Day has since moved for an order
awarding certain attorney's fees and expenses, contending
that the Gracys' failure to respond to his written
discovery requests in a timely manner needlessly increased
litigation costs. For the following reasons, the motion will
be granted in part and denied in part.
II.
Background
On
February 28, 2018, Day filed suit against the Gracys. The
complaint asserted a variety of state-law claims, including
fraud, breach of contract, promissory estoppel, and unjust
enrichment. The Gracys moved to dismiss Count Eleven, which
asserted a claim for violation of the Massachusetts consumer
protection statute, Mass. Gen. Laws ch. 93A. The Court denied
the motion on July 20, 2018.
On
August 16, 2018, the Court entered a scheduling order
directing the parties to complete fact discovery by January
18, 2019. On November 16, 2018, Day moved for sanctions
against Charles Gracy for failing to appear at his
deposition, which was scheduled for November 13, 2018.
Simultaneously, Day also moved for partial summary judgment
and to attach the property of the Gracys located in
Haverhill, Massachusetts.
Approximately
one month later, on December 13, 2018, the parties jointly
moved to extend the deadline for fact discovery to February
28, 2019, so that the parties could pursue mediation. The
joint motion further stipulated that the Gracys would respond
to Day's written discovery requests by January 4, 2019,
and that Day would withdraw his pending motions. The Court
granted the joint motion and entered a revised scheduling
order.
It is
undisputed that the Gracys failed to respond to Day's
written discovery requests by January 4, 2019. On January 12,
2019, Day filed renewed motions for partial summary judgment
and to attach the Haverhill property. On February 9, 2019,
Day moved to compel the Gracys to respond to his
interrogatories and requests for document production within
fourteen days. The magistrate judge granted the motion on
March 1, 2019, but denied without prejudice the portion of
the motion seeking costs until the conclusion of the case.
The Gracys responded to the discovery requests on March 15,
2019, nearly two and a half months after the court-ordered
deadline.
At a
motion hearing on April 17, 2019, the Court orally denied
without prejudice Day's motions for partial summary
judgment and to attach the Haverhill property.[1] After mediation
on May 13, 2019, the parties settled the matter.
Day has
since moved for an award of costs and attorneys' fees. It
appears that the motion was brought pursuant to Fed.R.Civ.P.
37(a)(5). He seeks a total of $5, 460 in attorney's fees
and $47 in expenses, which he contends were incurred because
of defense counsel's failure to timely respond to his
discovery requests.
III.
Analysis
As a
preliminary matter, Day may not bring his motion for
attorney's fees under Fed.R.Civ.P. 54(d)(2) for two
reasons. First, Rule 54(d)(2) sets forth the procedure by
which a “prevailing party” may recover
attorney's fees. However, the Supreme Court has made
clear that absent explicit statutory authority, district
courts are to follow “a general practice of not
awarding fees.” See Buckhannon Bd. and Care Home,
Inc. v. W.Va. Dep't of Health & Human Res., 532
U.S. 598, 602 (2001). Day has not identified any statutory
basis for this motion. Second, while settlement agreements
enforced by court-ordered decrees may convey prevailing party
status, most settlements do not. See Id. at 604-05
(interpreting the phrase “prevailing party” to
require some form of judicial action that sanctions a change
in the legal relationship of the parties, such as a judgment
on the merits); see also Dattner v. Conagra Foods,
Inc., 458 F.3d 98, 102 (2d Cir. 2006). Because the
settlement in this matter is not set forth in a court-ordered
decree or analogous judicial action, Day is not a
“prevailing party” within the meaning of Rule
54(d)(2).
Instead,
the only avenue for Day to recover his attorney's fees
and costs is Rule 37, which provides that “a party may
move for an order compelling disclosure or discovery.”
Fed.R.Civ.P. 37(a)(1). If the motion is granted, the
reviewing court may “require the party or deponent
whose conduct necessitated the motion . . . to pay the
movant's reasonable expenses incurred in making the
motion, including attorney's fees.” Fed.R.Civ.P.
37(a)(5). As noted, defendants failed to timely respond to
plaintiff's written discovery requests, necessitating a
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