Opinion
CASE NO: 03-32158-BKC-PGH.
September 17, 2008
ORDER GRANTING WALDEN'S MOTION TO DISMISS AND DENYING AS MOOT ROTELLA'S MOTION FOR JOINDER
THIS MATTER came before the Court for hearing on August 28, 2008, upon Linda Walden's ("Walden") Memorandum of Law in Opposition to Motion to Tax Attorneys' Fees and Costs Against Removed Chapter 7 Trustee and Cross-Motion to Dismiss ("Motion To Dismiss") [DE #2107], and upon Gary J. Rotella, Esq. and Gary J. Rotella Associates, P.A.'s (collectively "Rotella") Motion for Joinder of Additional Moving Party ("Motion for Joinder") [DE #2110].
Background
On November 17, 2004, this Court granted James F. Walker's ("Debtor") Emergency Motion to Remove Trustee Linda J. Walden Pursuant To 11 U.S.C. § 324 For Fraud Upon the Court ("Removal Motion") and entered an Order Removing Trustee from Chapter 7 Case ("Removal Order I") [DE #634]. On December 1, 2004, the Court also entered an Order Granting Debtor, James F. Walker's Emergency Motion to Remove Trustee, Linda J. Walden Pursuant to 11 U.S.C. § 324 for Fraud upon the Court ("Removal Order II") [DE #649] and a Final Judgment [D.E.#650]. Removal Order II memorialized the Court's findings of fact and conclusions of law on this matter. Removal Order II also provided for a reservation of jurisdiction by the Court "to award fees to Debtor's counsel for the damages caused by Linda J. Walden and her counsel by this action". In re Walker, 2004 WL 3152787 at *15 (Dec. 1, 2004). The Court's orders removing Walden as trustee were affirmed on appeal to the District Court and to the Eleventh Circuit. See In re Walker, 515 F.3d 1204 (11th Cir. 2008).
On Jun 19, 2006, while the appeal to the Eleventh Circuit was pending, Rotella filed a Motion to Tax Attorneys' Fees and Costs Against Removed Chapter 7 Trustee, Linda J. Walden, Relating to Order Granting James F. Walker's Emergency Motion to Remove Trustee Linda J. Walden, Pursuant to 11 U.S.C. § 324 For Fraud Upon the Court Entered December 1, 2004, Brought Pursuant to 11 U.S.C. § 105(a) ("Motion to Tax") [DE #1593]. The Motion to Tax seeks attorneys' fees and costs incurred by Rotella in connection with the prosecution of the Debtor's Removal Motion.
Walden's Motion to Dismiss alleges that Rotella's Motion to Tax is untimely, and that Rotella lacks standing to recover fees and costs incurred in connection with a Removal Motion that was filed by, and on behalf of, the Debtor. The Motion to Tax further argues that 11 U.S.C. § 105(a) does not provide authority for the Court to tax fees and costs against Walden personally. On August 25, 2008, Rotella filed the Motion for Joinder seeking to add the Debtor as an additional moving party seeking relief pursuant to the Motion to Tax. On August 27, 2008, Rotella filed a Response to [Walden's Motion to Dismiss] ("Response") [DE #2118].
The Motion to Dismiss also argues that the Motion to Tax is deficient because it fails to include the amount of fees and costs sought against Walden. The Motion to Tax has been set and reset several times. When the Court granted Walden's request to continue the hearing set for July 14, 2006, it directed both parties to file witness lists and exhibit lists in preparation for the continued hearing. The Court also directed Rotella to file and provide to counsel for Walden, a detailed itemization of the fees and costs sought in the Motion to Tax. See Orders (DE # 1625 and 1627). On August 4, 2006, Rotella filed a Notice of Filing with an itemization of his fees and costs (D.E. # 1697).
As discussed below, the Court herewith grants Walden's Motion to Dismiss because Rotella's Motion to Tax is untimely under the Local Rules of the U.S. Bankruptcy Court for the Southern District of Florida ("Local Rules"). Having made this ruling, the Court need not reach Walden's other arguments. As a consequence of this ruling, the Court will also deny as moot the Motion for Joinder.
The Motion is Untimely
Walden argues that the Motion to Tax is untimely pursuant to both Federal Rule of Civil Procedure 54(d)(2) and Local Rule 7054-1(F).
1. Federal Rule of Civil Procedure 54(d)(2)
Federal Rule of Civil Procedure 54(d)(2) provides a 14-day time period after entry of judgment in which to file a motion for attorney's fees. Walden argues that the Motion to Tax is untimely pursuant to Fed.R.Civ.P. 54(d)(2) because it was filed more than eighteen months after entry of the removal orders. The Court notes that the Federal Rules of Civil Procedure "apply to proceedings in bankruptcy to the extent provided by the Federal Rules of Bankruptcy Procedure." See Fed.R.Civ.P 81(a)(2). "Thus, the Federal Rules of Civil Procedure are only applicable in bankruptcy cases and proceedings to the extent they are incorporated by reference in the Federal Rules of Bankruptcy Procedure." 9 Collier on Bankruptcy ¶ 1001.01 (rev. 15th ed. 2008). Bankruptcy Rule 7054, which incorporates by reference Fed.R.Civ.P. 54(a)-(c), is applicable to adversary proceedings. It is also applicable to contested matters by virtue of Bankruptcy Rule 9014. However, Bankruptcy Rule 7054 incorporates by reference only subsections (a)-(c) of Fed.R.Civ.P. 54, it does not incorporate Fed.R.Civ.P. 54 subsection (d). Therefore, the 14-day time limit set forth in Fed.R.Civ.P. 54(d)(2) is inapplicable in bankruptcy. 2. Local Rule 7054-1(F)
Fed.R.Civ.P. 54(d) provides in part:
(2) Attorney's Fees.
(A) Claim to be by Motion. A claim for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.
(B) Timing and Contents of the Motion. Unless a statute or a court order provides otherwise, the motion must:
(i) be filed no later than 14 days after the entry of judgment; . . .
The Response also argued that if the Court found Fed.R.Civ.P. 54(d)(2) was applicable to bankruptcy proceedings, Removal Order II's reservation of jurisdiction to the Court to award attorneys' fees "provided otherwise as to the timing of the filing of the Motion." Resp. at 6. The Court notes that Removal Order II's reservation of jurisdiction did not extend the time to file a motion for fees, it merely provided the Court with jurisdiction to consider a timely request for fees.
Walden also argues that the Motion to Tax is untimely under Local Rule 7054-1(F). The Court agrees. Motions to award fees in this District are governed by Local Rule 7054-1(F) which provides:
The version of Local Rule 7054-1(F) in effect at the time of the Motion to Tax was unchanged by the recent amendments to the Local Rules of the U.S. Bankruptcy Court for the Southern District of Florida which became effective June 2, 2008.
(F) Motion for Fees and Costs Not Taxable by Clerk. Fees and costs which the clerk is not authorized to tax pursuant to subdivision (A), shall be considered only upon motion to the court filed within 20 calendar days after entry of the judgment.
Judgment is defined to include "a decree or any order from which an appeal lies." See Bankruptcy Rule 7054(a) incorporating Fed.R.Civ.P. 54(a). The Motion to Tax seeks fees pursuant to Removal Order II. This order was subject to, and indeed was, appealed. Thus, Removal Order II is a Judgment.
The Eleventh Circuit has noted that when a statute provides for an award of fees for the prevailing party but does not set a time limit for filing the request, the general rule is that
attorney's fee requests must be made within a reasonable period of time after the entry of final judgment. Loman Dev. Co. v. Daytona Hotel Motel Suppliers, 817 F.2d 1533, 1536 (11th Cir. 1987); Gordon v. Heimann, 715 F.2d 531, 539 (11th Cir. 1983). "The Supreme Court and this circuit have both intimated that the establishment of timeliness standards is best left to the district courts through the adoption of local rules." Loman, 817 F.2d at 1536; White v. New Hampshire Dept. of Employment Sec., 455 U.S. 445, 454 nn. 16 and 17, 102 S.Ct. 1162, 1168 nn. 16 and 17, 71 L.Ed.2d 325 (1982) (district court is authorized to adopt rules establishing timeliness standards for the filing of claims for attorney's fees); Gordon, 715 F.2d at 539 n. 8).
Clark v. Housing Authority of the City of Loma, 971 F.2d 723, 724-725 (11th Cir. 1992)
In addition, a Court's interpretation of its own Local Rules is generally given great deference. Id. at 727. "Local Rule 7054(F) provides, inter alia, that a motion for fees and costs that is not taxable by the clerk shall be made by motion to the court filed within twenty days after entry of the judgment." In re Empresa Naviera Santa USA, Inc., 235 B.R. 130, 132 (Bankr. S.D. Fla. 1999) (denying motion for attorneys' fees because it was untimely under the Local Rules): see also Pesin v. Rodriguez, 244 F.3d 1250 (11th Cir. 2001); Mindler v. Clayton County, Ga., 864 F. Supp. 1329 (N.D. Ga. 1994). The Motion to Tax was filed more than eighteen months after entry of Removal Order II and the Final Judgment. Therefore, the Motion to Tax is untimely because it was not filed within twenty days of entry of judgment as required by Local Rule 7054-1(F).
The Response attempts to distinguish the above-cited cases, that deny untimely motions for attorney fee awards, on the basis that Walden appealed Removal Order I before Rotella had an opportunity to file the Motion to Tax. However, the fact that Walden appealed Removal Order I, and later appealed Removal Order II and the Final Judgment, did not extend or stay the time to file the Motion to Tax. See Watkins v. McMillan, 779 F.2d 1465, 1466 (11th Cir. 1985) (determining that an appeal does not extend or stay the time limit for filing a motion for fees).
The Response further argues that the 20-day time limit is inapplicable because the Motion to Tax "does not involve a motion for taxation of fees pursuant to a Judgment in the ususal sense. Rather it involves the Court's inherent power pursuant to 11 U.S.C. § 105(a) to award sanctions in the form of damages consisting of an award of attorneys' fee. . . .". Resp. at 7. The Response further states that the "Motion for Sanctions/Damages is not a motion to tax costs, but rather a motion requesting that this Court use its well thought out inherent power pursuant to 11 U.S.C. § 105 to award the attorneys fees incurred. as a sanctions/damages award against [Walden]." Id. at 16. This alleged distinction does not extend the time to file a motion for an award of attorney's fees. Local Rule 7054-1(F), which sets a 20-day time limit to file motions for attorney's fees, does not except motions for fees sought pursuant to the Court's inherent powers. However, even if a motion for fees sought pursuant to the Court's inherent powers was excepted form the Local Rules, which it is not, a request for attorney's fees made eighteen months after entry of final judgment cannot be considered to have been made within a reasonable time. See Clark, 971 F.2d at 724 (noting general rule that requests for attorney's fees must be made within a reasonable time). Rotella could have timely requested an extension of time to file the Motion to Tax, but he did not.
The Court notes that despite Rotella's argument that the Motion to Tax is not a motion to tax fees and costs pursuant to a Judgment in the usual sense, the motion is titled: Motion to Tax Attorneys' Fees and Costs Against Removed Chapter 7 Trustee, Linda J. Walden, Relating to Order Granting James F. Walker's Emergency Motion to Remove Trustee Linda J. Walden, Pursuant to 11 U.S.C. § 324 For Fraud Upon the Court Entered December 1, 2004, Brought Pursuant to 11 U.S.C. § 105(a).
CONCLUSION
Having determined that the Motion to Tax, which was filed more than eighteen months after entry of Removal Order II and the Final Judgment, is untimely under Local Rule 7054-1(F), the Court need not address Walden's other arguments. The Court herewith grants the Motion to Dismiss. This ruling renders the Motion for Joinder moot.
ORDER
The Court, having reviewed the Motion to Dismiss, the Motion for Joinder, the additional submissions of the parties, the applicable law, and being otherwise fully advised in the premises, hereby ORDERS AND ADJUDGES that:
1. Walden's Motion To Dismiss is granted.
2. Rotella's Motion for Joinder is denied as moot.ORDERED in the Southern District of Florida on.