Hinfin Realty Corp., et al v. Pittston Company
MEMORANDUM AND ORDER - Despite its long-standing pendency, this Court has not addressed defendant The Pittson Company's motion for attorneys' fees. For the aforementioned reasons, Defendant's motion for attorneys' fees and costs is DENIED. So Ordered by Judge Joanna Seybert on 4/23/2014. (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HINFIN REALTY CORP., HARBOR FUEL
COMPANY, INC., and GLENWOOD TERMINAL
MEMORANDUM & ORDER
-againstTHE PITTSTON COMPANY,
John Peter McEntee, Esq.
Payne, Wood, & Littlejohn
290 Broad Hollow Road
Melville, New York 11747
Kathryn Gull, Esq.
23 South 6th Street
Locust Valley, New York 11560
SEYBERT, District Judge:
Despite its long-standing pendency, this Court has not
addressed defendant The Pittson Company’s (“Defendant”) motion
for attorneys’ fees.
Nonetheless, Defendant’s motion is DENIED.
background of this case.
Briefly, this case was originally
assigned to Judge Arthur D. Spatt.
Plaintiffs Hinfin Realty
Corp.; Harbor Fuel Company, Inc.; and Glenwood Terminal Corp.
granted on April 12, 2002.
In that Order, Judge Spatt also
denied Defendant’s motion for attorneys’ fees and costs, with
leave to renew with proper documentation.
that motion and, following reassignment to the undersigned, the
(See Endorsed Order dated Sept. 29, 2003.)
Defendant asserts that it should recover attorneys’
fees and costs because there was a Rule 41(a)(2) dismissal and
Generally, where a plaintiff successfully dismisses a
suit without prejudice under Rule 41(a)(2), courts can grant the
defendant an award of costs or fees.
See Colombrito v. Kelly,
764 F.2d 122, 133 (2d Cir. 1985) (“Fee awards are often made
when a plaintiff dismisses a suit without prejudice under Rule
41(a)(2).” (emphasis omitted)).
A fee award, however, is not
See Global One Commc’ns World Holding B.V. v. Gaul,
No. 01-CV-0254, 2008 WL 2783429, at *3 (N.D.N.Y. July 16, 2008)
(noting that the Colombrito rule “does not amount to a bright
line rule” in favor of granting fees).
Rather, there appears to
be a split within this Circuit, with some courts requiring a
plaintiff before granting fees.
See Cont’l Ins. Co. v. Morrison
(E.D.N.Y. May 7, 2009); BD ex rel. Doe v. DeBuono, 193 F.R.D.
But see Mercer Tool Corp. v. Friedr. Dick
GmbH, 179 F.R.D. 391, 396 (E.D.N.Y. 1998) (awarding fees despite
no finding of bad faith or vexatious conduct).
While not siding
with either formation of the rule, the Court finds the inquiry
into bad faith instructive and useful in this narrow case.
The policy considerations behind the Colombrito rule
point towards fear of duplicative litigation.
Indeed, the court
in Colombrito reasoned that “[t]he purpose of such awards is
generally to reimburse the defendant for the litigation costs
incurred, in view of the risk (often the certainty) faced by the
defendant that the same suit will be refiled and will impose
duplicative expenses upon him.”
764 F.2d at 133.
American law, which provides that each party bear the cost of
its own attorneys’ fees.
departure from the general rule that parties bear their own
costs and fees.
See In re Kassover, No. 98-43124, 2008 WL
4845757, at *3 (Bankr. S.D.N.Y. Oct. 30, 2008) (“Although a
court may impose attorneys’ fees and costs under Federal Rule
41(a)(2), it should do so only when justice so demands.”).
Colombrito is the “risk of relitigation of the issues.”
F.2d at 134.
However, any statute of limitations has long-
See N.Y. C.P.L.R. 213(2) (providing for a six-year
statute of limitations).
this case for years.
In fact, there has been no activity in
Simply put, it does not appear that this
is a pressing matter for Plaintiffs.1
This concern was indeed,
one of the reasons that the Plaintiffs dismissed their action in
the first place.
“generally to reimburse the defendant for the litigation costs
incurred in view of the risk faced by the defendant that the
same suit will be refiled and will result in the imposition of
The Gap Inc. v. Stone Int’l Trading,
Inc., 169 F.R.D. 584, 589 (S.D.N.Y. 1997).
As noted in the
December 19, 2002 Order, however, “payment of fees . . . must be
limited to compensation for work that cannot be used in a second
In the previous decision, the Court found
Moreover, in the April 12 Order, the Court noted that “the
plaintiffs’ board members are unsure if the continuation of this
action is economically warranted.” Hinfin Realty Corp. v.
Pittston Co., 206 F.R.D. 350, 352 (E.D.N.Y. 2002).
that “if the plaintiffs choose to file another lawsuit against
Pittston, the grounds likely will be the same, and much of the
work already done by Pittston will either be unnecessary or easy
Id. at 464.
award of fees and costs.
Thus, this also weighs against an
See Kassover, 2008 WL 4845757, at *4.
Third, Judge Spatt previously rejected any contention
that Plaintiffs acted in bad faith.
See Hinfin, 206 F.R.D. at
355-56 (observing that Plaintiffs were “prompt” and “diligent;”
not “vexatious;” and not “harass[ing])”; see also, Hinfin, 212
F.R.D. at 462 (“[T]he plaintiffs acted in good faith.”).
For the aforementioned reasons, Defendant’s motion for
attorneys’ fees and costs is DENIED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
23 , 2014
Central Islip, NY
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