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McCarthy v. Fuller

United States District Court, S.D. Indiana, Indianapolis Division

September 18, 2014

KEVIN B. McCARTHY, et al., Plaintiffs,


WILLIAM T. LAWRENCE, District Judge.

This cause is before the Court on numerous post-trial motions filed by the Plaintiffs and the Defendants. Each of the pending motions is addressed, in turn, below.

Defendants' Motion for Attorney's Fees (Dkt. No. 832)

This Court's Local Rule 54-1 provides:

(a) Deadline for Requests for Costs and Attorney's Fees. A party cannot recover attorney's fees and costs unless the party files and serves a bill of costs and a motion for fees within 14 days after final judgment is entered.[1] The court may extend this deadline for good cause if a motion requesting an extension is filed before the original deadline.

Final judgment was entered in this case on March 19, 2014. Accordingly, the deadline for filing motions seeking attorney's fees and costs was April 2, 2014. The Defendants' motion was filed on April 3, 2014; no motion for extension of the deadline was filed. The Defendants' motion therefore is DENIED as untimely. Bender v. Freed, 436 F.3d 747, 750 (7th Cir. 2006) (affirming denial of untimely fees motion despite asserted absence of prejudice, when there was no "corresponding claim that compliance with the deadline... was impossible or impracticable or that the [party's] noncompliance was for some reason excusable").

In their reply brief, the Defendants stridently argue that their motion was not untimely because they were entitled to the additional three days provided by Federal Rule of Civil Procedure 6(d) under certain circumstances; they go so far as to accuse the Plaintiffs of wasting the Court's time by arguing otherwise. The Plaintiffs are correct that Rule 6(d) is inapplicable to a motion for attorney's fees, however; indeed, as the Seventh Circuit held when faced with an indistinguishable situation, it was inexcusable for defense counsel to believe otherwise:

The attorney's understanding that Federal Rule of Civil Procedure 6(e)[2] provided him with three extra days to file a notice of appeal is inexcusable. An unaccountable lapse in basic legal knowledge is not excusable neglect. Rule 6(e) only enlarges the filing time when the period for acting runs from the service of a notice, not when the time for acting is designated from the entry of judgment. The distinction between "entry of judgment" and "service of a notice" is unambiguous to any trained lawyer such that the attorney's error cannot be categorized as a plausible misinterpretation of an ambiguous rule.

McCarty v. Astrue, 528 F.3d 541, 545 (7th Cir. 2008) (internal quotation marks and citations omitted).

The Court notes that the Defendants' motion is based on Federal Rule of Civil Procedure 54, Federal Rule of Civil Procedure 37, and 28 U.S.C. § 1927. While only Rule 54 provides a specific deadline for motions, Local Rule 54-1 applies to all motions for attorney's fees or costs regardless of the legal basis for them. If the Defendants needed more time to prepare their motion or obtain supporting documents regarding their costs, they could have filed a motion for additional time as provided by Local Rule 54-1. As their pattern has been in this case, however, the Defendants did not do so. Instead, they filed their motion four minutes past the applicable deadline and their brief in support of the motion more than three hours later and then lambasted the Plaintiffs for pointing out their tardiness.

As the Court has noted on more than one occasion, defense counsel was repeatedly admonished about late filings during the course of this litigation and suffered other substantial consequences as a result of them. The admonishments began when the Court denied the Plaintiffs' motion for default judgment, see Dkt. No. 47 at 7, continued throughout trial, see, e.g., Dkt. No. 828 at 6-7, and occurred numerous times in between. See, e.g., Dkt. No. 119 at 1-2; Dkt. No. 429 at 1; Dkt. No. 485 at 4 n.1, 6, 7; Dkt. No. 627 at 2; Dkt. No. 697. Indeed, the Court took the extraordinary measure of requiring defense counsel to certify that she had provided a copy of an entry to her clients, noting "[t]he Court's patience is not boundless, and the Court does not want the Defendants to be surprised if Ms. Cramer continues to fail to comply with the Court's orders and the sanction of dismissal and/or default is imposed as a result." Dkt. No. 422 at 3. Finally, in its Entry Following Final Pretrial Conference, the Court instructed counsel that further late filings would not be considered by the Court. Dkt. No. 729. For obvious reasons, even assuming the Court had discretion to ignore the missed deadline in this instance, it would not do so.

Finally, the Court notes that even if the motion had been timely, it would have been denied. The Defendants cite to no "statute, rule, or other grounds entitling" them to attorney fees as prevailing parties with regard to the claims on which they prevailed, see Rule 54(d)(2)(ii), and the Court is aware of none. Accordingly, any award of fees could be based only on § 1927 or Rule 37. The Defendants point to no specific ground for an award pursuant to Rule 37 and provide only a list of twenty acts of alleged misconduct, without any citation to the record or explanation of how each action demonstrates that plaintiffs' "counsel acted recklessly, counsel raised baseless claims despite notice of the frivolous nature of these claims, or counsel otherwise showed indifference to statutes, rules, or court orders, " which is the type of misconduct necessary to justify a sanction under § 1927. Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 799 (7th Cir. 2013) (citation omitted). It should go without saying a court could not issue sanctions against attorneys totaling over $7, 000, 000 based upon nothing more than a list of general grievances regarding how opposing counsel litigated a case. Defense counsel recognizes this herself, of course:

This list is but a partial summary. The docket, itself, and the record of the trial, confirms most of these violations. Regarding the remainder of the violations, the Movants are prepared to supplement this Memorandum, if necessary, with proof documenting each and every item listed above, as well as additional violations of the Court's orders, violations of the rules of discovery, violations of the Rules of Procedure, and violations of the Code of Professional Conduct by the attorneys for the Plaintiffs-Counterclaims Defendants.

Dkt. No. 833 at 15. But it is not appropriate to file a motion that simply offers to make an appropriate argument with appropriate support at some later date. Rather, "[u]nsupported and undeveloped arguments... are considered waived." See, e.g., United States v. Tockes, 530 F.3d 628, 633 (7th Cir. 2008).

McCarthy's Renewed Motion for Judgment as a Matter of Law (Dkt. No. 834) and Plaintiffs' Motion for Reconsideration (Dkt. No. 841)

These motions are DENIED, as they seek relief-entry of judgment in McCarthy's favor on Fuller's conversion and defamation claims-that McCarthy already has received. While the jury did find in favor of Fuller as to liability on those claims, it awarded her no damages. This was not a judgment in favor of Fuller. See Franzen v. Ellis Corp., 543 F.3d 420, 431 (7th Cir. 2008) ("An interlocutory jury verdict on the issue of liability alone, however, is insufficient to constitute a judgment awarded to the plaintiff."). Accordingly, the Court entered judgment in favor of McCarthy on those claims and every other claim asserted against him in this case. See Judgment, Dkt. No. 829 at ¶ 5 ("Counterclaimants Fuller and Hartman shall recover nothing against any of the Counterclaim Defendants."); cf. Franzen, 543 F.3d at 431 (noting that "a judgment reading Plaintiffs shall take nothing by their complaint' is a judgment in favor of the defendant").

Hartman's Motion to Alter and Amend Judgment (Dkt. No. 838)

In this motion, Defendant Hartman asks the Court to alter and amend the verdict against him. Before the Court turns to the merits of the motion, two preliminary issues must be addressed.

First, in this and other post-trial filings, the Defendants attempt to "incorporate by reference their other post-trial motions and request that the Court consider the legal and factual grounds set forth in all of their motions when deciding the merits of each." Dkt. No. 838 at 3. The Court declines to do so. "It is not this court's responsibility to research and construct the parties' arguments, " Draper v. Martin, 664 F.3d 1110, 1114 (7th Cir. 2011), but, in essence, that is what the Defendants ask this Court to do: read everything they have filed and determine how the arguments they make and the information they provide in Document A might be applied to bolster the arguments they make in Document C. To do so would not be fair to the Plaintiffs, who would be deprived of ...

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