Vincent et al v. Anand
Filing
92
MEMORANDUM OPINION & ORDER:It is hereby ORDERED as follows:1. Ptf's Motion for Atty Fees 58 is DENIED w/out PREJUDICE. Parties may submit requests for atty fees w/in 30 days after appeal has been resolved;2. Ptf's motion to seal 65 is GRANTED;3. Ptf's Motion for Charging Order 67 is GRANTED. Any interest the dft has shall be CHARGED w/ pmt of this Court's Judgment;4. Ptf's Motion for Writ of Execution 88 is DENIED WITHOUT PREJUDICE. Signed by Judge Gregory F. VanTatenhove on 06/27/2023.(KCF)cc: COR
Case: 5:18-cv-00419-GFVT Doc #: 92 Filed: 06/28/23 Page: 1 of 5 - Page ID#: 889
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
JOHN VINCENT and JOHN CHI,
Plaintiffs,
v.
ASHWINDI ANAND,
Defendants.
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Civil No. 5:18-cv-00419-GFVT
MEMORANDUM OPINION
&
ORDER
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This matter is before the Court on numerous motions filed by the Plaintiffs. They are
attempting to enforce the Court’s Judgment against the Defendant. [R. 56.] These motions are
resolved as explained below.
I
The Plaintiffs brought this case alleging that the Defendant violated multiple settlement
agreements between the parties. [R. 1.] The matter was initially assigned to Judge Hood, who
granted the Plaintiffs summary judgment on their breach of contract claims but deferred ruling
on damages. [R. 40.] After the matter was reassigned to the undersigned, the Court entered
Judgment in the Plaintiffs’ favor in the amount of $794,008.22. [R. 56.] The Defendant
appealed orders granting the Plaintiffs summary judgment and the corresponding Judgment in
their favor. [R. 63.] In the meantime, the Plaintiffs are attempting to enforce that Judgment
through multiple motions. [See, e.g. R 57; R. 58; R. 67; R. 88.] Each pending motion will be
addressed in turn.
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II
A
First, the Plaintiffs filed a Bill of Costs and Motion for Attorney’s Fees. [R. 57; R. 58.]
The requested fees and costs would reimburse the Plaintiffs’ attorneys for their representation in
this case. The Defendant opposes the Motions. [R. 62.] He argues that the appeal makes “any
rational determination of the entitlement to or reasonableness of any attorney fees” impossible.
Id. at 2.
By prior order, Judge Hood determined that the Plaintiffs are entitled to contractual
attorney’s fees. [R. 40 at 11.] The Guaranty which the Defendant breached provided that the
“successful party” would be reimbursed for “reasonable attorney’s fees.” [R. 34-1 at 8.] At this
time, the Plaintiffs are the “successful party” because the Court granted them summary
judgment. [R. 40 at 11.] However, the Notice of Appeal filed by the Defendant makes their
motions for attorney’s fees and bill of costs premature. The Defendant’s success or failure on
appeal could impact whether the Plaintiffs are the successful party and are accordingly entitled to
fees under the Guaranty. [See R. 34-1 at 8.]
District courts regularly defer ruling on requests for attorney’s fees while an appeal is
pending. See, e.g., Nat’l Farmers’ Org. v. Assoc. Milk Prod., Inc., 850 F.2d 1286, 1312 (8th
Cir. 1988); Kryder v. Estate of Rogers, 321 F. Supp. 3d 803, 809-10 (M.D. Tenn. 2018). The
advisory notes contemplate this approach, stating that “[i]f an appeal on the merits of the case is
taken, the court may rule on the claim for fees, may defer its ruling on the motion, or may deny
the motion without prejudice, directing under subdivision (d)(2)(B) a new period for filing after
the appeal has been resolved.” Fed. R. Civ. P. 54(d), Advisory Committee Notes (1993). The
Court finds that deferring its ruling on the Motion for Attorney’s Fees is prudent and promotes
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judicial economy. Accordingly, it will deny the requests without prejudice and allow the parties
to renew any request for attorney’s fees within thirty days following resolution of the appeal in
this matter.
B
The Plaintiffs also seek leave to file their attorney fee invoices under seal. [R. 65.] Their
motion for attorney’s fees asks the Court to review their invoices in camera. [R. 50 (renewed at
R. 58).] They argue that the invoices are protected by attorney-client privilege and work-product
doctrine and that the Court can determine the appropriate amount of fees from the submitted
affidavits. Id. at 6. The Court will conditionally grant the motion to seal the invoices while
ruling on the motion for attorney’s fees is deferred.
C
Next, the Plaintiffs seek a charging order. [R. 67.] The Federal Rules contemplate that
execution procedures “must accord with the procedure of the state where the court is located, but
a federal statute governs to the extent it applies.” Fed. R. Civ. P. 69(a)(1). A charging order is
an enforcement mechanism provided by Kentucky law. KRS § 275.260. It provides that “the
judgment creditor of a member or the assignee of a member may satisfy a judgment out of the
judgment debtor's limited liability company interest.” Id. Under this provision, the Plaintiffs
seek an order charging the Defendant’s membership in any LLC with payment of the Judgment.
Id. at 2. The Defendant did not oppose the request.
The Plaintiffs are entitled to a charging order. They are judgment creditors of an
individual—the Defendant—who is a member of multiple limited liability companies. [R. 67-2.]
Accordingly, the Court “may charge the judgment debtor’s interest in the limited liability
company with payment of the unsatisfied amount of the judgment.” KRS § 275.260(2). But “to
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the extent so charged, the judgment creditor has only the rights of an assignee and shall have no
right to participate in the management or to cause the dissolution of the limited liability
company.” Id. The Court will grant the motion for charging order. [R. 67.]
D
Finally, the Plaintiffs seek a writ of execution. [R. 88.] As a matter of course, writs of
execution are issued by the Clerk of Court and not by the Court itself. Further, the application is
typically submitted on Writ of Execution form, which is accessible on the District’s website.
The Court will deny the motion for a writ of execution without prejudice. The Plaintiffs may
renew the request using the proper procedure.
III
Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as
follows:
1. The Plaintiffs’ Motion for Attorney’s Fees [R. 58] is hereby DENIED WITHOUT
PREJUDICE. The parties may submit requests for attorney’s fees within thirty (30) days after
the appeal has been resolved;
2. The Plaintiffs’ Motion to Seal [R. 65] is GRANTED;
3. The Plaintiffs’ Motion for Charging Order [R. 67] is GRANTED. Any interest the
Defendant has in a limited liability company shall be CHARGED with payment of this Court’s
Judgment plus interests, costs, and attorney’s fees as have been or may be awarded. The
charging order SHALL constitute an encumbrance and lien on and the right to receive
distributions made with respect to Defendant’s membership interest or share in the Charged
LLCs, in favor of and for the benefit of John Vincent and John Chi. If the Charged LLCs make
distributions of any kind, said LLCs SHALL pay the entire and full amount of the distribution to
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Plaintiffs’ counsel, unless and until this Court’s Judgement (plus interests, costs, and attorney
fees as have been or may be awarded) has been satisfied in its entirety. If any of the Charged
LLCs make any distributions of any kind to other members of the Charged LLCs, a
corresponding disbursement for Defendant’s share/interest SHALL be made at the same time to
Plaintiffs’ counsel unless and until this Court’s Judgement (plus interests, costs, and attorney
fees as has or may be awarded) has been satisfied in its entirety; and,
4. The Plaintiffs’ Motion for Writ of Execution [R. 88] is DENIED WITHOUT
PREJUDICE.
This the 27th day of June, 2023.
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