Philadelphia Indemnity Insurance Company v. Central Terminal Restoration Corporation et al
DECISION AND ORDER denying 50 Motion for Attorney Fees without prejudice to renewal no later than fourteen (14) days after the date a ruling on the merits of plaintiff's appeal by the United States Court of Appeals for the Second Circuit is entered on the docket of the Western District of New York; denying 51 Motion to Alter Judgment. Signed by Hon. Michael A. Telesca on 08/10/2017. (CDH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PHILADELPHIA INDEMNITY INSURANCE
CENTRAL TERMINAL RESTORATION
CORPORATION, WILLIAM SHEEHAN, MARCY
A. SHEEHAN, and MICHAEL A. SERRANO,
(“plaintiff” or “PIIC”) commenced the instant action seeking a
declaratory judgment regarding its duty to defend and indemnify
defendant Central Terminal Restoration Corporation (“CTRC”) in
lawsuits commenced by defendants William and Marcy A. Sheehan (“the
Sheehans”) and Michael A. Serrano (“Mr. Serrano”).
Sheehans, and Mr. Serrano are hereinafter collectively referred to
as the “defendants.”
Each of the parties moved for summary
judgment (see Docket Nos. 32-35) and, on May 7, 2017, the Court
entered a Decision and Order granting Defendants’ motions for
summary judgment and holding that PIIC was required to defend and
indemnify CTRC under the terms of both the commercial general
liability coverage part of CTRC’s primary policy and CTRC’s excess
Docket No. 47.
entered on May 8, 2017.
Judgment in favor of defendants was
Docket No. 48.
Currently pending before the Court are two motions filed by
The first is a motion for attorneys’ fees filed pursuant to
Federal Rule of Civil Procedure 54(d) (“Rule 54(d)”).
The second is a motion that also seeks attorneys’ fees, but is
denominated as a request to alter or amend the judgment.
No. 51. For the reasons discussed below, CTRC’s motion to alter or
amend the judgment is denied and CTRC’s motion for attorneys’ fees
is denied without prejudice to renewal no later than fourteen (14)
days after the date a ruling on the merits of plaintiff’s appeal by
the United States Court of Appeals for the Second Circuit is
entered on the docket of the Western District of New York.
CTRC’s Motion to Amend or Alter the Judgment is
Unnecessary and Duplicative of Its Motion for Attorneys’
As a threshold matter, the Court considers whether CTRC was
required to file a motion to alter or amend the judgment in this
On May 19, 2017, 11 days after judgment was entered, CTRC
filed a motion for attorneys’ fees in accordance with Rule 54(d).
Docket No. 50.
On June 2, 2017, and for reasons that are not clear
to the Court, CTRC filed a second motion seeking the identical
relief, but denominated as a motion seeking to alter or amend the
judgment in this matter.
Docket No. 51.
The sole explanation
offered by CTRC for the filing of this second motion is a statement
by attorney Kenneth W. Africano that it somehow “came to [his]
attention that an argument could be made that CTRC should have
filed a motion for an amended judgment in order to obtain judgment
on its claim for attorneys’ fees,” with no further discussion of
what that argument might be.
Docket No. 51-1 at ¶ 5.
event, CTRC was not required to file a motion to alter or amend the
judgment in order to seek attorneys’ fees.
See Buchanan v.
Stanships, Inc., 485 U.S. 265, 268-69 (1988) (noting distinction
between a motion under Rule 54(d) and a motion to alter or amend
the judgment and explaining that a request under Rule 54(d) is not
properly brought as a motion to alter or amend the judgment);
Standard Commercial Tobacco Co. v. M/V “RECIFE”,1994 WL 376102, at
*2 (S.D.N.Y. July 18, 1994) (a motion brought pursuant to Rule
54(d) “does not imply a change in the judgment, but merely seeks
what is due because of the judgment”) (quotation omitted). Indeed,
the text of Rule 54(d) plainly anticipates that a motion requesting
attorneys’ fees will be made after judgment is entered.
R. Civ. P. 54(d)(2)(B)(i) (motion for attorneys’ fees must “be
filed no later than 14 days after the entry of judgment”).
It appears that CTRC may believe that the Court somehow
implicitly denied its request for attorneys’ fees by not discussing
the matter in its earlier Decision and Order. This is not correct.
CTRC’s brief in support of its motion for summary judgment did
raise the issue of attorneys’ fees, but further stated that, were
the Court to find in CTRC’s favor, an appropriate application for
attorneys’ fees would be made at that time.
See Docket No. 34-7 at
application, the Court did not rule on the issue.
Trapani v. Consol. Edison Employees' Mut. Aid Soc., Inc., 1988 WL
138129, at *3 (S.D.N.Y. Dec. 14, 1988) (declining to decide the
issue of attorneys’ fees prior to receiving a complete application
because “all relevant information should be before the court before
it arrives at a final decision on the issue of attorney’s fees”).
Nothing in the Court’s prior Decision and Order was intended to
foreclose an application for attorneys’ fees by CTRC at the
For the foregoing reasons, CTRC’s motion to alter or amend the
judgment is duplicative and unnecessary in light of its already
pending motion for attorneys’ fees pursuant to Rule 54(d).
motion to alter or amend the judgment is therefore denied.
The Court Will
CTRC argues that it is entitled to recover attorneys’ fees and
costs under well-established New York law providing for payment of
coverage claim against its insured.
As a threshold matter, the
Court notes that plaintiff does not dispute the basic premise of
CTRC’s application and concedes that “New York law allows the court
to award reasonable attorneys’ fees to a prevailing insured that
was put in a defensive posture in coverage litigation.” Docket No.
52 at 5.
Instead, plaintiff argues (1) that the motion for
attorneys’ fees is premature because plaintiff has filed a notice
of appeal and (2) that CTRC cannot recover fees expended in
prosecuting counterclaims against plaintiff.
The propriety of deciding a motion for attorneys’ fees while
an appeal is pending is squarely addressed by the 1993 Advisory
Committee’s notes to Rule 54(d), which explain that “[i]f an appeal
on the merits of the case is taken, the [district] 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
Fed. R. Civ. P. 54, 1993 Advisory Committee’s Notes.
Accordingly, “[w]here the losing party takes an appeal on the
merits of case, the district court has the discretion to defer
ruling on the prevailing party's motion for attorney’s fees.” Gill
v. Bausch & Lomb Supplemental Ret. Income Plan I, 2014 WL 1404902,
at *1 (W.D.N.Y. Apr. 10, 2014).
However, Rule 54(d) “permits the
court, where appropriate, to make a quick resolution of the fee
motion so that any appeal of that issue might be consolidated with
an appeal of the merits.”
Here, the Court finds that “delaying resolution of [CTRC’s]
request for attorneys’ fees until [plaintiff’s] appeal on the
merits has been decided is the more prudent course of action.”
Mhany Mgmt. Inc. v. Inc. Vill. of Garden City, 44 F. Supp. 3d 283,
285-86 (E.D.N.Y. 2014) (quotation omitted). The Court’s finding is
based on the fact that a Second Circuit reversal of the Court’s
holding would “moot the . . . motion for attorneys’ fees” and
therefore “deferring a ruling on [CTRC’s] motion for attorneys’
fees until the Second Circuit resolves [plaintiff’s] appeal ensures
that the Court only has to address the motion for attorneys’ fees
by the party that ultimately prevails.”
necessity of a second motion seeking the fees associated with
litigating the appeal, and, in the event CTRC is the ultimate
prevailing party, it can seek appropriate interest on the fee
For the reasons set forth above, CTRC’s motion to alter or
amend the judgment (Docket No. 51) is denied and CTRC’s motion for
attorneys’ fees (Docket No. 50) is denied without prejudice to
renewal no later than fourteen (14) days after the date a ruling on
the merits of plaintiff's appeal by the United States Court of
Appeals for the Second Circuit is entered on the docket of the
Western District of New York.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Rochester, New York
August 10, 2017
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