Fryer v. Fire

• Decision Date: 15 December 2010
• Docket Number: Civil Action No. 09–10178–MBB.
• Citation: 758 F.Supp.2d 29
• Parties: Stephen F. FRYER, Plaintiff,v.A.S.A.P. FIRE AND SAFETY CORPORATION, INC., Joseph Sheedy and Brian Cote, Defendants.
• Court: U.S. District Court — District of Massachusetts

758 F.Supp.2d 29

Stephen F. FRYER, Plaintiff,

v.A.S.A.P. FIRE AND SAFETY CORPORATION, INC., Joseph Sheedy and Brian Cote, Defendants.

Civil Action No. 09–10178–MBB.

United States District Court, D. Massachusetts.

Dec. 15, 2010.

Jonathan H. Meyer, Backus, Meyer, & Solomon, Manchester, NH, Nancy A. Richards–Stower, Law Offices of Nancy Richards–Stower, Merrimack, NH, for Plaintiff.Brian T. Akashian, Law Offices of Kevin J. Murphy, Kevin J. Murphy, Attorney at Law, Chelmsford, MA, for Defendants.

MEMORANDUM AND ORDER RE: PLAINTIFF'S SECOND MOTION FOR ATTORNEY FEES AND FOR POST–TRIAL INTEREST ON THE FEES (DOCKET ENTRY # 82); PLAINTIFF'S MOTION TO CORRECT INTEREST AWARDED (DOCKET ENTRY # 85); DEFENDANT A.S.A.P. AND SAFETY CORPORATION, INC.'S, DEFENDANT JOSEPH SHEEDY'S AND DEFENDANT BRIAN COTE'S MOTION TO CORRECT A CLERICAL MISTAKE AND/OR MISTAKE PURSUANT TO RULE 60 (DOCKET ENTRY # 87)

BOWLER, United States Magistrate Judge.

In two post trial motions, the parties seek to correct a mistake in the calculation of postjudgment interest on an attorneys' fee award of $178,144.28 under Rule 60, Fed.R.Civ.P. (“Rule 60”). (Docket Entry # 85 & 87). The mistake at issue generates a discrepancy in amount of less than $700. A hearing on the above motions is not necessary.

Plaintiff Stephen F. Fryer (“plaintiff”) also moves for a supplemental award of attorneys' fees in the amount of $21,707.50 and postjudgment interest on such fees. (Docket Entry # 82) Prior to addressing the unopposed motion for supplemental fees, this court turns to the motions seeking to correct the mistakes relative to postjudgment interest on the initial $178,144.28 fee award.

BACKGROUND

On December 7, 2009, plaintiff filed a motion seeking postjudgment interest as well as prejudgment interest. (Docket Entry # 45). The motion sought postjudgment interest on the entire award rendered by the jury and this court “including any attorney fees awarded.” ¹ (Docket Entry # 45). Defendants A.S.A.P. Fire and Safety Corporation, Inc., Joseph Sheedy and Brian Cote (“defendants”) did not oppose the motion.

On the same day, plaintiff filed the first motion for attorneys' fees (Docket Entry # 46) which defendants opposed (Docket Entry # 52). Neither the motion for attorneys' fees (Docket Entry # 46) nor the opposition (Docket Entry # 52) addressed the issue of the applicable interest rate and accrual date for postjudgment interest on any attorneys' fee award.

In a January 25, 2010 Memorandum and Order, 680 F.Supp.2d 317, this court allowed the motion for interest. (Docket Entry # 56). As to postjudgment interest, this court directed that the final judgment include postjudgment interest at the applicable rate. (Docket Entry # 56).² Notwithstanding this direction, the January 25, 2010 final judgment erroneously reflected a postjudgment interest rate of .41%. (Docket Entry # 58). The correct rate in effect for the calendar week preceding the January 25, 2010 judgment was .31%. The January 25, 2010 Memorandum and Order also advised the parties that, “[T]his court will address the applicable interest, if any, on any attorneys' fees at the time this court addresses the post trial motion for attorneys' fees and the applicable postjudgment interest on those fees.” (Docket Entry # 56). After issuance of the January 25, 2010 Memorandum and Order, the parties did not seek leave of court to address the rate of postjudgment interest or the accrual date relative to an award of postjudgment interest on attorneys' fees.

On November 4, 2010, this court awarded plaintiff $178,144.28 in attorneys' fees and costs. This court also awarded plaintiff $69,237.12 in postjudgment interest calculated at the rate of .41% beginning on November 24, 2009, the day the jury rendered the verdict. (Docket Entry # 84). Due to errors in the calculation and the rate of postjudgment interest in the November 4, 2010 opinion, plaintiff asks this court to recalculate the postjudgment interest on the attorneys' fee award. Plaintiff correctly points out that the postjudgment interest rate for the week preceding the January 25, 2010 final judgment was .31%.³ (Docket Entry # 85). Defendants agree that this court miscalculated the postjudgment interest award and request a reduction of the $69,237.12 award to $692.37 to reflect the correct arithmetic calculation ($178,144.28 x .41% = $692.37). (Docket Entry # 87). Defendants do not address the error in the postjudgment interest rate or the accrual date for postjudgment interest on the attorneys' fee award.

DISCUSSION

Plaintiff presently moves for a recalculation of the postjudgment interest on the $178,144.28 award of attorneys' fees. (Docket Entry # 85). In addition to the incorrect interest rate, the issue therefore involves whether the November 4, 2010 Memorandum and Order incorrectly calculated the amount ($69,237.12) and properly set the accrual date as the date of the jury verdict (November 24, 2009).

In pertinent part, section 1961 reads:

Interest shall be allowed on any money judgment in a civil case recovered in a district court ... Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1–year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment.

28 U.S.C.A. § 1961. The statutory language using the word “judgment” establishes that it is a judgment as opposed to a jury verdict that provides the applicable date to calculate postjudgment interest on a verdict. See Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 835, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) (both prior and amended versions of section 1961 refer to “date of judgment” thereby indicating “a date certain” and “neither alludes to the date of the verdict”); ⁴

Foley v. City of Lowell, Mass., 948 F.2d 10, 22 (1st Cir.1991) (“appropriate date for calculation of postjudgment interest on award of damages is date of judgment, not date of verdict”) (paraphrasing Kaiser, 494 U.S. at 835, 110 S.Ct. 1570, in parenthetical). Likewise, use of the term “money judgment” demonstrates that “ section 1961(a) does not provide for interest until a money judgment has been entered.” Happy Chef Systems, Inc. v. John Hancock Mut. Life Ins. Co., 933 F.2d 1433, 1437 (8th Cir.1991) (rejecting date the court rendered judgment on liability as applicable accrual date for postjudgment interest); see also Radford Trust v. First Unum Life Ins. Co. of America, 491 F.3d 21, 24 (1st Cir.2007) (“finding of liability alone without a corresponding determination on damages does not suffice to start the clock on postjudgment interest”) (citing Happy Chef Sys., Inc. v. John Hancock Mut. Life Ins. Co., 933 F.2d at 1435). “The existence of a ‘money judgment’ ” under section 1961(a) “requires damages to have been ascertained in a ‘meaningful way.’ ” Radford Trust v. First Unum Life Ins. Co. of America, 491 F.3d at 24; accord Fiorentino v. Rio Mar Associates LP, SE, 2010 WL 4908087, *3 (1st Cir. Dec. 2, 2010) (same; quoting Kaiser, 494 U.S. at 836, 110 S.Ct. 1570).

Using this reasoning and the language of section 1961, the accrual date for postjudgment interest on an attorneys' fee award is not the date of the verdict. Rather, it is either the date of the merits judgment or the date of the quantum judgment.⁵ Use of the November 24, 2009 date as the accrual date for postjudgment interest on the attorneys' fee award was an error.

A circuit split exists as to whether postjudgment interest on an attorneys' fee award runs from the date of the merits judgment or the date of the quantum judgment. See Haddad Motor Group, Inc. v. Karp, Ackerman, Skabowski & Hogan, P.C., 716 F.Supp.2d 161, 162 (D.Mass.2010). Courts in this district calculate fees from the date of the merits judgment. See Id. (this district “has consistently followed the majority rule and held that interest is to accrue as of the date of the merits judgment entitling the prevailing party to attorney's fees”) (collecting cases in this district and in other circuits); McDonough v. City of Quincy, 353 F.Supp.2d 179, 192 & n. 12 (D.Mass.2005); Mogilevsky v. Bally Total Fitness Corp., 311 F.Supp.2d 212, 224 (D.Mass.2004). The issue is one of first impression in the First Circuit. See Radford Trust v. First Unum Life Ins. Co. of America, 491 F.3d at 24 (“[t]his court has never ruled” on the issue of “whether postjudgment interest on attorneys' fees accrues when the entitlement to fees is established or when the amount of the fees is quantified”); Foley v. City of Lowell, 948 F.2d at 22 n. 16.

Neither plaintiff nor defendants, however, request that postjudgment interest on the attorneys' fee award run from the date when this court quantified the amount of fees (November 4, 2010).⁶ Defendants only ask for a recalculation of the arithmetic error in calculating the postjudgment interest on the $178,144.28 award. In fact, defendants never addressed or raised the issue of the correct accrual date from which to calculate postjudgment interest on an attorneys' fee award. Plaintiff only identifies as options the January 25, 2010 final judgment and the November 24, 2009 date of the jury verdict. The issue of whether to apply postjudgment interest on the attorneys' fee award beginning on the quantum judgment date is therefore waived. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st Cir.1999) (“district court is free to disregard arguments that are not adequately developed”); see also Vallejo v. Santini–Padilla, 607 F.3d 1, 7 (1st Cir.2010) (“[p]laintiffs have not cited a single authority in support of their assertion that their failure to timely oppose the motion to dismiss did not constitute waiver, and their claim that the argument could not have been raised until after the sanction had been imposed is completely meritless”); U.S. v. Dyer, 589 F.3d 520, 527 (1st Cir.2009) (before “...