TBM Land Convervancy v. Nextel West Corp. et al

Filing 85

ORDER. ORDERED that Plaintiff's Motion Requesting Dismissal of Defendants' Motion for Attorneys' Fees and Costs as the Prevailing Party in This Action 68 is denied. Signed by Judge Philip A. Brimmer on 02/28/17. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 15-cv-00134-PAB-KLM
TBM LAND CONSERVANCY, INC., a Colorado corporation,
Plaintiff,
v.
NEXTEL WEST CORP., a Delaware corporation;
NEXTEL FINANCE COMPANY, a Delaware corporation;
NEXTEL COMMUNICATIONS, INC., a Delaware corporation; and
SPRINT COMMUNICATIONS, INC., a Kansas corporation,
Defendants.

ORDER

This matter is before the Court on Plaintiff’s Motion Requesting Dismissal of
Defendants’ Motion for Attorneys’ Fees and Costs as the Prevailing Party in This Action
[Docket No. 68]. The Court has jurisdiction pursuant to 28 U.S.C. § 1332.
On December 21, 2014, plaintiff filed its complaint [Docket No. 3] in the District
Court for Jefferson County, Colorado concerning Nextel’s1 termination of a lease with
plaintiff granting Nextel the right to use land in Clear Creek County, Colorado owned by
plaintiff as a communication site. See Docket No. 33 at 2. On January 20, 2015,
Nextel West Corp. and Nextel Communications, Inc. removed the case to federal court.
Docket No. 1. On September 10, 2015, the Court granted Nextel’s motion to dismiss all
but the second claim of plaintiff’s complaint, which seeks injunctive relief requiring
1

The Court refers to defendants Nextel West Corp., Nextel Finance Company,
Nextel Communications, Inc., and Sprint Communications, Inc., collectively, as “Nextel.”
Sprint is a predecessor of Nextel with respect to the contract at issue. See Docket No.
33 at 1-3.

Nextel to remove its equipment from the lease site. 2 Docket No. 33 at 13. On August
26, 2016, Nextel filed a motion for attorney’s fees and costs regarding all claims but the
second claim. Docket No. 60. On September 16, 2016, plaintiff filed the instant motion
to dismiss defendants’ motion for attorney’s fees as prematurely filed because no
judgment has been entered in this case. Docket No. 68 at 1.
In support of its motion, plaintiff cites Fed. R. Civ. P. 54(d)(2)(B)(i), which states
that a motion for attorney’s fees must “be filed no later than 14 days after the entry of
judgment.” Fed. R. Civ. P. 54(d)(2)(B)(i). The plain language of the rule provides a
deadline by which a motion for attorney’s fees must be filed, but says nothing about
when a motion for attorney’s fees would be considered premature. Courts have found
that Rule 54 does not require parties to wait for entry of judgment to file a motion for
attorney’s fees. See Keister v. PPL Corp., 2015 WL 9480455, at *6 (M.D. Pa. Dec. 29,
2015) (“no final judgment has yet been entered after which fourteen days could have
theoretically passed”); Contract Materials Processing, Inc. v. Kataleuna GmbH
Catalysts, 222 F. Supp. 2d 733, 739 (D. Md. 2002) (“the 14 day period [under Rule 54]
marks an outer temporal limit for filing a motion for attorney’s fees”); but see Bytska v.
Swiss Int’l Air Line, Ltd., 2016 WL 6948375, at *4 (N.D. Ill. Nov. 28, 2016) (denying a
motion for attorney’s fees as premature because “there is no judgment for the plaintiff
to specify under Rule 54(d)(2)(b)(ii)”). The Court finds that plaintiff’s reliance on the
deadline in Rule 54 is misplaced.

2

On January 20, 2017, Nextel filed a motion for summary judgment as to
plaintiff’s second claim and for the return of its security deposit pursuant to its
counterclaim. Docket No. 78. That motion is pending before the Court.
2

The real issue is whether Nextel qualifies as a “prevailing party” under the lease
despite the lack of a final judgment. Section 11.2(d) of the lease between the parties
states: “In the event that either party allegedly defaults under this Lease, the prevailing
party in any ensuing action shall be entitled to recover all costs and attorneys fees from
the other party.” Docket No. 10-1 at 5. Colorado law controls the meaning of this
provision. Ward v. Siebel Living Trust, 2011 WL 6000531 (10th Cir. Dec. 1, 2011)
(unpublished) (Colorado law controls the interpretation of contract granting the
“prevailing party” attorney’s fees).
To justify granting plaintiff’s motion, the Court would need to find that Nextel
might not be the “prevailing party” and postpone Nextel’s motion until plaintiff’s second
claim for relief is resolved. Plaintiff provides no argument as to why Nextel would not
be the prevailing party in this litigation even if plaintiff’s second claim seeking injunctive
relief were decided adversely to Nextel.
For the foregoing reasons, it is
ORDERED that Plaintiff’s Motion Requesting Dismissal of Defendants’ Motion for
Attorneys’ Fees and Costs as the Prevailing Party in This Action [Docket No. 68] is
denied.

DATED February 28, 2017.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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