CX Reinsurance Company Limited v. Kirson
Filing
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REPORT AND RECOMMENDATIONS re 188 MOTION for Attorney Fees filed by Devon S. Johnson and 189 MOTION for Attorney Fees filed by CX Reinsurance Company Limited. Signed by Magistrate Judge Stephanie A Gallagher on 11/5/2018. (jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CX REINSURANCE COMPANY LIMITED,
Plaintiff,
v.
DEVON S. JOHNSON,
Defendant.
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Civil Case No.: RWT-15-3132
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REPORT AND RECOMMENDATIONS
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].
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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 fourteenday 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,
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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 F. App’x 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 Jacksonera Local Rule does not necessarily support Johnson’s position.
Johnson’s reliance on Cross v. Bragg, 329 F. App’x 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 F. App’x 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
Compare Local Rule 109.2(a) (2016) (“Unless otherwise provided by statute, L.R. 109.2.c, or otherwise
ordered by the Court, any motion requesting the award of attorneys’ fees must be filed within fourteen
(14) days of the entry of judgment.”), with Local Rule 23A (1986) (“Except as otherwise provided by
statute, or Local Rule 23B or ordered by the Court, a motion for attorney's fees claimed by a prevailing
party and/or such party's attorney must be filed by said party or attorney within 20 days of the entry of
judgment.”).
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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
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a fee petition to be filed within fourteen days of the entry of judgment, whether or not a postjudgment 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
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“[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 judgment, not from post-judgment motions. Jackson,
828 F.2d at 1078; Evans I, 659 F. Supp. 2d at 729; Evans II, 2010 WL 610880, at *2-3; see
Levin, 2001 WL 224834, at *1.
Johnson argues that the finding of excusable neglect under similar circumstances in
Evans II, 2010 WL 610880, at *3-4, supports a finding of excusable neglect in this case. Def.
Partial Reply 16. CX Re points out that counsel for Johnson also represented the defendant in
Evans I and Evans II. Pl. Partial Opp’n 6. The briefs that counsel filed in Evans I and Evans II
advance essentially the same arguments contained in Johnson’s Partial Reply in this case.
Compare Def. Partial Reply at 3-17 with Corrected Reply Mem. in Supp. of Renewed Pet. For
Att’ys Fees at 2-7, Evans I, 659 F. Supp. 2d 727 (Civil No. WDQ-05-0444) [ECF 111], and Def.
Mot. to Alter or Amend J. Under Fed. R. Civ. P. 59(e) at 5-13, Evans II, Civil No. WDQ-050444 [ECF 120]. There have been no notable developments on this issue in the eight years since
Judge Quarles ruled, in a case involving Johnson’s counsel, that the enactment of Rule 54 and
Cross do not alter the interpretation of the Local Rule. If Johnson’s counsel wished to advance
the argument that Judge Quarles reached an erroneous result in Evans I and Evans II, they could
have filed a request for an extension of time, incorporating that argument, before the fourteen-
Counsel for Johnson emailed CX Re on June 30, 2018, writing that “we concluded that the deadline is
based on the Court’s June 20, 2018 denial of our motion for modification, not the date of the original
order, so we have a few extra days.” Pl. Partial Opp’n 1-2. It is evident, therefore, that Johnson’s counsel
made an intentional decision to delay filing his fee petition.
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day deadline had passed. Doing so would have allowed the Court to evaluate the argument for
an extension, without requiring a finding of excusable neglect. See Fed. R. Civ. P. 6(b)(1) (only
requiring excusable neglect when the extension is requested after the time has expired). Instead,
Johnson not only waited until after the deadline passed, but did not even address the issue of
timeliness in his Motion for Attorneys’ Fees, [ECF 188]. Johnson’s decision to reiterate the
arguments his counsel made unsuccessfully to Judge Quarles in Evans II is a litigation strategy,
not an example of excusable neglect. Accordingly, I recommend that Johnson’s motion be
denied as untimely filed.
IV.
CX Re’s Motion
CX Re conditioned its Motion for Attorneys’ Fees, [ECF 189], on the timeliness of
Johnson’s Motion.
Therefore, the denial of Johnson’s Motion would render CX Re’s
Conditional Motion moot, and I recommend that it also be denied.
CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1. the Court DENY Johnson’s Motion for Attorneys’ Fees [ECF 188]; and
2. the Court DENY CX Re’s Conditional Motion for Attorneys’ Fees [ECF 189] as
moot.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Federal Rule of Civil Procedure 72(b) and Local Rule 301.5(b).
NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions, and
recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
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novo review of the determinations contained in the report and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.
Dated: November 5, 2018
/s/
Stephanie A. Gallagher
United States Magistrate Judge
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