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Day v. Gracy

United States District Court, D. Massachusetts

August 8, 2019

MICHAEL DAY, Plaintiff,
v.
CHARLES GRACY and MARK GRACY, Defendants.

          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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