Hulihan v. Regional Transportation Commission of Southern Nevada et al

Filing 114

MINUTE ORDER IN CHAMBERS of the Honorable Judge Edward C. Reed, Jr, on 10/5/2011 that Defendants motion 100 for attorneys fees and costs is DENIED without prejudice. (Copies have been distributed pursuant to the NEF - ECS)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
RENO, NEVADA
SHARON HULIHAN,
Plaintiff,
vs.
THE REGIONAL TRANSPORATION
COMMISSION OF SOUTHERN NEVADA, a
Public Entity under State and
Federal Statutes; LAIDLAW TRANSIT
SERVICES, INC., a Foreign
Corporation; and FIRST TRANSIT,
INC., a Foreign Corporation; and
DOES 1-100, inclusive,
Defendants.
PRESENT:
Deputy Clerk:

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DOCKET NO. 2:09-cv-01096-ECR-RJJ
MINUTES OF THE COURT
DATE: October 5, 2011

EDWARD C. REED, JR.
COLLEEN LARSEN

U. S. DISTRICT JUDGE
Reporter:

NONE APPEARING

Counsel for Plaintiff(s)

NONE APPEARING

Counsel for Defendant(s)

NONE APPEARING

MINUTE ORDER IN CHAMBERS
Now pending before the Court is Defendants The Regional Transportation
Commission of Southern Nevada, Laidlaw Transit Services, Inc., and First
Transit, Inc.’s (the “Defendants”) motion (#100) for attorneys’ fees and
costs filed on July 5, 2011. Plaintiff responded (#102) on July 25, 2011,
and Defendants filed their reply (#103).
On June 21, 2011, the Court denied (#94) Defendants’ motion (#67) for
summary judgment as to Plaintiff’s first and second causes of action for
violations of the Americans with Disabilities Act and the Rehabilitation Act,
and granted the motion as to Plaintiffs’ third cause of action for state law
negligence. Defendants now seek attorneys’ fees and costs for prevailing on
the state law claim.
Federal Rule of Civil Procedure 54(d)(2) provides the proper procedure
for seeking an award of attorneys’ fees. Specifically, the Rule provides

that a motion for attorneys’ fees must be filed within fourteen (14) days
after entry of judgment and must specify the judgment entitling the movant to
an award. Fed. R. Civ. P. 54(d)(2)(B)(i),(ii). Furthermore, Local Rule 5416(a) provides that motions for attorneys’ fee shall be filed within
“fourteen (14) days after entry of the final judgment or other order
disposing of the action.” As the Court has not yet entered a final judgment
in this case, Defendants have failed to comply with the rules and are not
entitled to attorneys’ fees at this juncture.
Federal Rule of Civil Procedure 54(d)(1) provides that costs should be
allowed to the prevailing party unless a court order provides otherwise.
Federal, rather than state, law governs the award of costs.
Drumm v.
Morningstar, Inc., 695 F. Supp. 2d 1014, 1026-27 (N.D. Cal. 2010) (citing
Clausen v. M/V NEW CARISSA, 339 F.3d 1049, 1064-65 (9th Cir. 2003)).
Moreover, by the terms of Rule 54(d)(1), this Court has discretion to refuse
to award costs. Ass’n of Mexican-Am. Educators v. California, 231 F.3d 572,
591 (9th Cir. 2000).
Defendants cannot establish that they are the
“prevailing party” because there remain claims to be litigated in this case.
Accordingly, the Court agrees with Plaintiff that Defendants’ motion for
costs is premature.
IT IS, THEREFORE, HEREBY ORDERED that Defendants’ motion (#100) for
attorneys’ fees and costs is DENIED without prejudice.

LANCE S. WILSON, CLERK
By

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/s/
Deputy Clerk