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CX Reinsurance Co. Ltd. v. Johnson

United States District Court, D. Maryland

November 5, 2018

CX REINSURANCE COMPANY LIMITED, Plaintiff,
v.
DEVON S. JOHNSON, Defendant.

          REPORT AND RECOMMENDATIONS

          STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE

         On July 11, 2018, the above-referenced case was referred to me to review the parties' pending motions for attorneys' fees and to make recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 301 and 302. [ECF 190]. For the reasons set forth below, I recommend that Johnson's Motion for Attorneys' Fees, [ECF 188], be denied as untimely, and that CX Reinsurance Company Limited's (“CX Re's”) Conditional Motion for Attorneys' Fees, [ECF 189], be denied as moot.

         I. Procedural History

         On June 15, 2018, United States District Judge Roger W. Titus granted CX Re's Motion to Dismiss this case. [ECF 180]. On June 18, 2018, Johnson filed a Motion for Modification of Judge Titus's order. [ECF 182]. Judge Titus denied that motion on June 20, 2018. [ECF 185]. On July 3, 2018, Johnson filed a Motion for Attorneys' Fees (“Johnson's Motion”). [ECF 188]. CX Re filed a Conditional Motion for Attorneys' Fees on July 5, 2018, which it requested the Court to consider only if Johnson's Motion was considered on its merits. [ECF 189]. On July 13, 2018, Johnson filed a Motion to Alter/Amend Judgment and to Modify Court's Orders. [ECF 191]. Judge Titus denied that motion on August 3, 2018. [ECF 195].

         On August 24, 2018, I suspended briefing on CX Re's Conditional Motion for Attorneys' Fees, pending the resolution of CX Re's argument that Johnson's Motion for Attorneys' Fees was not timely filed. [ECF 200, 204]. At my direction, CX Re filed a Partial Opposition to Johnson's Motion on September 18, 2018, and Johnson filed a Partial Reply Memorandum on October 16, 2018. [ECF 205, 208]. CX Re then filed a Motion for Leave to File Surreply on October 17, 2018. [ECF 209]. I granted that motion on November 1, 2018, and have considered all of the filings, including the surreply, in making these recommendations.

         II. Johnson's Motion is Untimely

         Local Rule 109.2(a) states that “any motion requesting the award of attorneys' fees must be filed within fourteen (14) days of the entry of judgment.” Johnson argues that the fourteen-day deadline should be measured from Judge Titus's denials of his post-judgment motions, rather than his June 15, 2018, dismissal of the case. Def. Partial Reply 3-13. Nothing in the Local Rules suggests that the deadline for filing a motion for attorneys' fees is stayed when a party files a post-judgment motion. In fact, the plain language of Local Rule 109 suggests otherwise. Local Rule 109.1 states that the deadline for filing a bill of costs is “within fourteen (14) days of the entry of judgment, or of the entry of an order denying a motion[] filed under Fed.R.Civ.P. 50(b), 52(b), or 59.” The wording of Local Rule 109.1 strongly suggests that the phrase “entry of judgment” in Local Rule 109.2, standing alone without a similar reference to post-judgment motions, is intended to mean the actual entry of judgment.

         Consistent with the plain language of Local Rule 109.2, courts in this jurisdiction have held that the period for filing a motion for attorneys' fees under the Local Rule runs “from the date of entry of the primary judgment . . . [rather than] post-verdict motions.” Jackson v. Beard, 828 F.2d 1077, 1078 (4th Cir. 1987); First Penn-Pac. Life Ins. Co. v. William R. Evans, Chartered, 659 F.Supp.2d 727, 729 (D. Md. 2009) (“Evans I ”); First Penn-Pac. Life Ins. Co. v. William R. Evans, Chartered, Civil No. WDQ-05-0444, 2010 WL 610880, at *2-3 (D. Md. 2010) (“Evans II ”); see also Levin v. Septodont, Inc., No. CIV.A. WMN-99-647, 2001 WL 224834, at *1 (D. Md. 2001) (reaching the same conclusion but based on a previous version of the Local Rule which stated that the motion for attorneys' fees “may be supplemented to request fees for any work done thereafter in connection with any post-trial motion”), vacated on other grounds, 34 Fed.Appx. 65 (4th Cir. 2002) (unpublished). Johnson argues that the alteration of the Local Rule after Levin supports his position, because the Local Rule no longer references supplementation to the motion for attorneys' fees for work done on post-trial motions. Def. Partial Reply 9-10. Although the amendment to the Local Rule somewhat diminishes Levin's persuasiveness in this case, the Fourth Circuit's decision in Jackson, 828 F.2d at 1078, was based on nearly identical language to the Local Rule currently in effect.[1] See Evans I, 659 F.Supp.2d at 729. Therefore, the post-Levin reversion of the Local Rule to language similar to the Jackson-era Local Rule does not necessarily support Johnson's position.

         Johnson's reliance on Cross v. Bragg, 329 Fed.Appx. 443 (4th Cir. 2009) (unpublished), is misplaced for the reasons explained by United States District Judge William D. Quarles, Jr., in Evans II, 2010 WL 610880, at *2-3. The Fourth Circuit held in Cross that a motion for attorneys' fees was not untimely, where the district court order preceding the motion did not decide all of the issues in the case. Cross, 329 Fed.Appx. at 458; Evans II, 2010 WL 610880, at *2-3. Here, unlike in Cross, Judge Titus disposed of all issues in his June 15, 2018, order of dismissal. [ECF 180]. Moreover, as Judge Quarles explained, Cross did not discuss the Jackson decision, and thus “did not represent an intervening change in the law.” Evans II, 2010 WL 610880, at *3.

         Johnson's discussion of Don Roos Construction Co. v. Fieldstone Cabinetry, Inc., 916 F.Supp. 544 (D. Md. 1996), is unavailing on this point. The issue in that case, whether an order of remand to a state court is considered a “judgment, ” does not bear on whether a post-judgment motion alters the deadline for a fee petition under the Local Rule.

         Johnson argues that CX Re's interpretation of the Local Rule would put the rule in conflict with Federal Rule of Civil Procedure 54 (“Rule 54”). However, Rule 54 states that, “[u]nless a statute or a court order provides otherwise, the motion [for attorneys' fees] must be filed no later than 14 days after the entry of judgment.” Fed.R.Civ.P. 54(d)(2)(B) (emphasis added). Local rules are construed as standing orders of the district court. Evans I, 659 F.Supp.2d at 730 (citing Planned Parenthood of Central N.J. v. Attorney Gen., 297 F.3d 253, 260 (3d Cir. 2002); Tire Kingdom, Inc. v. Morgan Tire & Auto, Inc., 253 F.3d 1332, 1335 (11th Cir. 2001); Walker v. City of Bogalusa, 168 F.3d 237, 239 (5th Cir. 1999); Eastwood v. Nat'l Enquirer, Inc., 123 F.3d 1249, 1257 (9th Cir. 1997); Johnson v. Lafayette Fire Fighters Ass'n Local 472, 51 F.3d 726, 729 (7th Cir. 1995)). The Local Rule does not conflict with Rule 54, because Rule 54 allows courts to modify the deadline for motions for attorneys' fees. Because Rule 54 and the Local Rule do not need to impose a uniform deadline, the interpretations of Rule 54 cited by Johnson, including the Fourth Circuit's unpublished decision in Barghout v. Bureau of Kosher Meat & Food Control, 141 F.3d 1157 (4th Cir. 1998) (unpublished table decision), do not control the Court's interpretation and application of its Local Rule. Evans I, 659 F.Supp.2d at 730 n.4. Accordingly, I am persuaded that the existing language of Local Rule 109.2 requires a fee petition to be filed within fourteen days of the entry of judgment, whether or not a post-judgment motion is filed. Johnson's motion was therefore untimely.

         III. Johnson's Untimeliness Was Not Due to Excusable Neglect

         Johnson next argues that, if his Motion was untimely, the court should extend the deadline, because his untimeliness was due to excusable neglect. Where a party moves to toll the filing period after the deadline has passed, Federal Rule of Civil Procedure 6 provides that, “the court may, for good cause, extend the time . . . if the party failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1). Neglect is defined as “to leave undone or unattended to esp[ecially] through carelessness.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388 (1993). “Whether neglect is ‘excusable' has been described by the Supreme Court as ‘at bottom an equitable [inquiry], taking account of all relevant circumstances,' including the following: (1) the danger of prejudice to the non-movant; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was in the reasonable control of the movant; and (4) whether the movant acted in good faith.” Fernandes v. Craine, 538 Fed. App'x 274, 276 (4th Cir. 2013) (quoting Pioneer, 507 U.S. at 395 (1993)). The Fourth Circuit has “stressed that the third Pioneer factor-the reason for the delay-is the ‘most important.'” Id. (quoting Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir. 1996)). Excusable neglect is only meant to be invoked in extraordinary cases to avoid injustice, and is not meant to be easily demonstrated. Thompson, 76 F.3d at 534 (citing advisory committee notes to 1964 Fed.R.Civ.P. 73(a)). “[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable neglect.” Pioneer Inv. Servs. Co., 507 U.S. at 392 (internal quotations omitted).

         CX Re concedes that three of the Pioneer factors do not weigh in its favor, because “[o]nly in rare circumstances” could a party opposing a motion for attorneys' fees show danger of prejudice, delay in judicial proceedings, or bad faith by the movant. Pl. Partial Opp'n 4. With regards to the crucial factor, “the reason for delay, ” Johnson argues the delay occurred because the interpretation and application of the Local Rule is “[a]t a minimum . . . uncertain.”[2] Def. Partial Reply 15. However, as noted above, judges in this Court have held, without exception, that the fourteen days runs from the date of ...


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