Kosilek v. Department of Corr, et al

Filing 558

Chief Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER Accordingly, it is hereby ORDERED that: 1. The time by which plaintiff shall file any motion for attorneys' fees is EXTENDED to October 4, 2012, without prejudice to the possibility of a further extension if one is requested. See Fed. R. Civ. P. 54(d)(2)(B). 2. Counsel shall meet at least once to discuss whether the parties can agree on a resolution of the question of an award ofattorneys' fees to plaintiff and any relat ed issues. 3. By October 2, 2012: a. Defendant shall either file a motion to extend the time for the filing of a Notice of Appeal or state that he is not seeking an extension of time to do so. See Fed. R. App. P. 4(a)(5). b. If such an extension is r equested, plaintiff shall state whether he opposes the request and, if so, the reasons for his opposition. c. Plaintiff shall state whether he requests a further extension of time to file a motion for an award of attorneys' fees. d. If such an extension is requested, defendant shall state whether he opposes the request and, if so, the reasons for his opposition.(Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MICHELLE L. KOSILEK,
Plaintiff,
v.
LUIS S. SPENCER, in his official
capacity as Commissioner of the
Massachusetts Department of
Correction,
Defendant.

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C.A. No. 00-12455-MLW

MEMORANDUM AND ORDER
WOLF, D.J.

September 16, 2012

On September 4, 2012, the court issued a Memorandum and Order
that,

among

other

things,

directed

that

judgment

enter

for

plaintiff Michelle Kosilek (the "Order"). See 2012 WL 3799660 at
*54 (D. Mass. Sept. 4, 2012). The Order also stated that "[t]he
possible award of reasonable costs and attorneys fees, pursuant to
42

U.S.C.

§1988,

is

reserved

for

future

consideration."

Id.

Judgment for plaintiff was entered on September 6, 2012.
The court understands the present procedural posture of the
case is as follows. Unless otherwise ordered, if defendant Luis
Spencer wishes to appeal, a Notice of Appeal must be filed within
30 days of the entry of judgment. See Fed. R. App. P. 4(a)(1)(A).
The time begins running the day after the entry of judgment and if
the last day is a Saturday, Sunday or legal holiday, the period to
file runs until the next business day. See Fed. R. Civ. P. 6(a)(1).
Therefore, the present deadline for the filing of a Notice of

Appeal is October 9, 2012, because October 6, 2012 is a Saturday,
October 7, 2012 is a Sunday and October 8, 2012 is Columbus Day.1
The court may, however, extend the time for filing a Notice of
Appeal if good cause or excusable neglect is shown. See Fed. R.
App. P. 4(a)(5); Virella-Nieves v. Briggs & Stratton Corp., 53 F.3d
451, 453 (1st Cir. 1995).
Kosilek has prevailed on his claim that the defendant has
violated his Eighth Amendment rights and is continuing to do so.
Therefore, he is eligible to be awarded his reasonable attorneys'
fees and costs. See 42 U.S.C. §1988(b). The Supreme Court has
stated that "a prevailing plaintiff should ordinarily recover an
attorney's fee unless special circumstances would render such an
award unjust." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)
(internal

quotation

marks

omitted).

The

First

Circuit

has

"consistently held that despite the permissive phrasing of the Fees
Act [§1988(b)], fee awards in favor of prevailing civil rights
plaintiffs are virtually obligatory." De Jesús Nazario v. Morris
Rodríguez, 554 F.3d 196, 200 (1st Cir. 2009) (internal quotation
marks, citations, and alterations omitted). Unless the court orders
a different deadline, a motion for attorneys' fees must be filed
within 14 days of the entry of judgment, which in this case would
be September 20, 2012. See Fed. R. Civ. P. 6(a)(1) and 54(d)(2)(B).

1

While the court understands its calculations are accurate,
the parties should either confirm or correct them to assure that
no deadline is inadvertently missed.
2

If Kosilek files a motion for attorneys' fees before defendant
files a Notice of Appeal, the court may extend the time for the
filing of a Notice of Appeal but is not required to do so. See Fed.
R. Civ. P. 58(e); Fed. R. App. P. 4(a)(4)(A)(iii).
In this case, unless the "stringent criteria" for establishing
"special circumstances" are shown to exist, De Jesús Nazario, 554
F.3d at 201, the amount of attorneys' fees which Kosilek will be
awarded is likely to be large. For example, after a six-day trial
in which Department of Corrections Commissioner Kathleen Dennehy
was found to have unlawfully refused to provide certain Muslim
prisoners daily Halal meals, the Department was ordered by another
judge of this Court to pay $237,299 as attorneys' fees and an
additional $13,630 as costs. See Hudson v. Dennehy, 538 F. Supp.
400, 413 n.26 (D. Mass. 2008); Memorandum and Order on Plaintiffs'
Motion for Attorneys' Fees and Costs at 15, Hudson v. Dennehy, No.
01-12145 (D. Mass. July 25, 2008) (Docket No. 125). In addition,
deciding the issues relating to a possible fee award may require
substantial further litigation. See Ustrak v. Fairman, 851 F.2d
983, 987 (7th Cir. 1988) (Fee litigation "can turn a simple civil
case into two or even more cases – the case on the merits, the case
for fees, the case for fees on appeal, the case for fees for
proving fees, and so on ad infinitum, or at least ad nauseam.").
Therefore, it is in the interest of justice that the parties have
an opportunity to confer to determine whether they can agree on a

3

resolution

of

the

issues

concerning

the

possible

award

of

attorneys' fees and any related questions.
Accordingly, it is hereby ORDERED that:
1. The time by which plaintiff shall file any motion for
attorneys' fees is EXTENDED to October 4, 2012, without prejudice
to the possibility of a further extension if one is requested. See
Fed. R. Civ. P. 54(d)(2)(B).
2. Counsel shall meet at least once to discuss whether the
parties can agree on a resolution of the question of an award of
attorneys' fees to plaintiff and any related issues.
3. By October 2, 2012:
a. Defendant shall either file a motion to extend the
time for the filing of a Notice of Appeal or state that he is not
seeking an extension of time to do so. See Fed. R. App. P. 4(a)(5).
b. If such an extension is requested, plaintiff shall
state whether he opposes the request and, if so, the reasons for
his opposition.
c. Plaintiff shall state whether he requests a further
extension of time to file a motion for an award of attorneys' fees.
d. If such an extension is requested, defendant shall
state whether he opposes the request and, if so, the reasons for
his opposition.
/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE

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