Arnold et al v. Heyns et al

Filing 291

OPINION and ORDER Granting In Part and Denying In Part Defendant's 275 Motion to Strike and Denying Without Prejudice Plaintiffs' 273 Motion for Attorney Fees. Signed by District Judge Linda V. Parker. (RLou)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GERALD ACKERMAN and
MARK SHAYKIN,
Plaintiffs,
Civil Case No. 13-14137
Honorable Linda V. Parker

v.
HEIDI WASHINGTON,
Defendant.
_________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO STRIKE [ECF NO. 275] AND DENYING
WITHOUT PREJUDICE PLAINTIFFS’ MOTION FOR ATTORNEYS’
FEES [ECF NO. 273]
This matter is presently before the Court on Plaintiffs’ request for attorneys’
fees (ECF No. 273) incurred in connection with their “meat and dairy” claim,
which proceeded to trial and resulted in a decision in favor of Plaintiffs and against
Defendant on January 30, 2020. Defendant has appealed that decision. Defendant
has filed a motion to strike Plaintiffs’ motion because it is untimely and was filed
without first seeking concurrence. (ECF No. 275.) Alternatively, Defendant’s ask
the Court to stay the motion or deny it without prejudice in light of Defendant’s
pending appeal. The Court concludes that it should stay the resolution of
Plaintiffs’ fee request until the Sixth Circuit resolves Defendant’s appeal.

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The Advisory Committee Note to the 1993 Amendments to Rule 54 of the
Federal Rules of Procedure provides, in relevant part:
If 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. A notice of
appeal does not extend the time for filing a fee claim
based on the initial judgment, but the court under
subdivision (d)(2)(B) may effectively extend the period
by permitting claims to be filed after resolution of the
appeal.
In some cases, ruling on a motion for attorneys’ fees prior to the appeal decision is
the most efficient approach. It allows for any appeal relating to fees to be
considered with the merits of the case. Where “the claim for fees involves
substantial issues or is likely to be affected by the appellate decision, the district
court may prefer to defer consideration of the claim for fees until after the appeal is
resolved.” Fed. R. Civ. P. 58 Advisory Committee Notes 1993.
In this case, if Plaintiffs prevail on appeal, they will be entitled to additional
fees for time spent on the appeal. Mich. Bldg. & Constr. Trades Council, AFLCIO v. Snyder, No. 11-13520, 2012 WL 1893516, at *2 (E.D. Mich. May 23,
2012) (citing Dowling v. Litton Loan Servicing LP, 320 F. App’x 442, 450 (6th
Cir. 2009) (“Where a statute provides for an award of attorney’s fees to a
prevailing party, ‘reasonable appellate fees may [also] be awarded to [the]
prevailing part[y].’ ” (citation omitted)). On the other hand, if Defendant prevails
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on appeal in whole or in part, the ruling will impact Plaintiffs’ ability to recover
their full attorneys’ fees. As Plaintiffs’ claim for fees is likely to be affected by the
appellate decision, delaying resolution of the claim serves the interest of judicial
economy.
Accordingly,
IT IS ORDERED that Defendant’s motion to strike Plaintiffs’ request for
attorneys’ fees (ECF No. 275) is GRANTED IN PART AND DENIED IN
PART.
IT IS FURTHER ORDERED that Plaintiffs’ request for attorneys’ fees
(ECF No. 273) is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: May 11, 2020

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