Seratt v. Seratt

Filing 49

ORDER denying 47 Motion for Attorney Fees; denying 47 Motion to Alter Judgment. Signed by Honorable Jimm Larry Hendren on March 3, 2010. (tg)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS F A Y E T T E V I L L E DIVISION R O D G E R SERATT v. T I M O T H Y SERATT ORDER N o w on this 3rd day of March, 2010, comes on for consideration D e f e n d a n t ' s Motion for Award of Attorney's Fees (document #47), and f r o m said motion, the supporting documentation, and the response t h e r e t o , the Court finds and orders as follows: 1. T h e plaintiff brought this diversity action against the The plaintiff alleged that in 1994 C i v i l No. 07-5210 DEFENDANT PLAINTIFF

d e f e n d a n t on November 16, 2007.

a n d 1995 he and the defendant entered into multiple unwritten a g r e e m e n t s , in which the plaintiff loaned and/or entrusted funds and personal property to the defendant. According to the

p l a i n t i f f , defendant assured him that the funds and property would b e returned to plaintiff "upon demand." pursuant to the unwritten agreements, Plaintiff alleged that, the defendant owed him

$76,000.00. 2. O n March 6, 2009, the Court granted defendant's Motion

f o r Summary Judgment, finding that plaintiff's claims are barred by t h e statute of limitations, and dismissed plaintiff's claims with prejudice. 3. O n April 29, 2009, the defendant filed the instant motion

f o r attorney's fees.

4. 5.

T h e plaintiff opposes the defendant's motion. A l t h o u g h Rule 54 of the Federal Rules of Civil Procedure

a n d Rule 54.1 of the Local Rules for the Eastern and Western D i s t r i c t s of Arkansas 1 control motions for attorney's fees, the i n s t a n t motion is made pursuant to Rules 60(a) and 60(b)(6) of the F e d e r a l Rules of Civil Procedure. The Court finds that Rules 60(a) and 60(b)(6) are not the a p p r o p r i a t e rules under which the defendant should have sought a t t o r n e y ' s fees. Further, because the appropriate time period

p r o s c r i b e d by Rule 54 had long since expired prior to the filing of t h e instant motion; and, because the Arkansas statute under which the defendant seeks attorney fees allows for discretionary

a p p l i c a t i o n , the Court finds the motion should be, and hereby is, denied. IT IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN U N I T E D STATES DISTRICT JUDGE

1 Both FRCP 54 and Local Rule 54.1 establish that a motion for attorney's fees shall be filed within fourteen (14) days after the entry of judgment. Further, Local Rule 54.1 provides that "[a] failure to present a timely petition for an award of attorney's fees may be considered by the Court to be a waiver of any claim for attorney's fees." The instant motion, made pursuant to Rule 60, was filed approximately thirty-four (34) days after the entry of judgment.

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