Hinfin Realty Corp., et al v. Pittston Company

Filing 85

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
----------------------------------X
HINFIN REALTY CORP., HARBOR FUEL
COMPANY, INC., and GLENWOOD TERMINAL
CORP.,
Plaintiffs,

MEMORANDUM & ORDER
00-CV-4285(JS)

-againstTHE PITTSTON COMPANY,
Defendant.
----------------------------------X
APPEARANCES
For Plaintiffs:
John Peter McEntee, Esq.
Payne, Wood, & Littlejohn
290 Broad Hollow Road
Melville, New York 11747
For Defendant:

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

The

Court

presumes

background of this case.

general

familiarity

with

the

Briefly, this case was originally

assigned to Judge Arthur D. Spatt.

Plaintiffs Hinfin Realty

Corp.; Harbor Fuel Company, Inc.; and Glenwood Terminal Corp.
(“Plaintiffs”)
Federal

Rule

moved
of

for

Civil

a

voluntary

Procedure

dismissal

41(a)(2),

which

pursuant
Judge

to

Spatt

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.

Defendant renewed

that motion and, following reassignment to the undersigned, the
Court

entered

addressed.

an

Order

stating

that

the

motion

would

be

(See Endorsed Order dated Sept. 29, 2003.)
DISCUSSION
Defendant asserts that it should recover attorneys’

fees and costs because there was a Rule 41(a)(2) dismissal and
Plaintiffs

failed

to

participate

in

the

action.

The

Court

disagrees.
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)).
automatic.

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
showing

of

bad

faith

or

vexatious

plaintiff before granting fees.

conduct

on

behalf

of

the

See Cont’l Ins. Co. v. Morrison
2

Exp.

Corp.,

Ltd.,

No.

06-CV-2408,

2009

WL

1269701,

at

*2

(E.D.N.Y. May 7, 2009); BD ex rel. Doe v. DeBuono, 193 F.R.D.
117,

125

(S.D.N.Y.

(S.D.N.Y. 1996).

2000);

In

re

Shavit,

197

B.R.

763,

771

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.”
Colombrito

exception

is

in

764 F.2d at 133.

contrast

to

the

Moreover, the

general

rule

of

American law, which provides that each party bear the cost of
its own attorneys’ fees.
The

See id.

circumstances

of

this

case

do

not

warrant

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.”).
3

First,

one

of

the

considerations

contemplated

Colombrito is the “risk of relitigation of the issues.”
F.2d at 134.
passed,

764

However, any statute of limitations has long-

and

litigation.

in

the

parties

have

not

indicated

any

subsequent

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.
Second,

another

purpose

of

the

Colombrito

rule

is

“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
duplicative expenses.”

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
contemplated
Pittston

Co.,

action
212

citations omitted).

.

. .

F.R.D.

.”

Hinfin

461,

463

Realty

(E.D.N.Y.

Corp.

2002)

v.

The

(internal

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).
1

4

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
to duplicate.”

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.”).
CONCLUSION
For the aforementioned reasons, Defendant’s motion for
attorneys’ fees and costs is DENIED.
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

April
23 , 2014
Central Islip, NY

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