Dubois v. Restore: The North Woods

• Court: District Court, D. New Hampshire
• Decided: December 10, 1998
• Docket: CV-95-50-B
• Status: Published

Opinion

Dubois v. Restore: The North Woods CV-95-50-B 12/10/98 UNITED STATE DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Roland Dubois

v. Civil No. 95-50-B

Restore: the North Woods

O R D E R

I denied Roland Dubois's motion for attorney's fees in a

July 17, 1998 Order.The clerk entered judgment for the

defendant on October 1, 1998. Dubois has filed a motion seeking

either: (1) clarification of the judgment specifying that it does

not cover the July 17, 1998 Order, or (2) a rulingreconsidering

the Order. I address each reguest in turn.

A. The Form of the Judgment

Although neither party raises the issue, the October 1, 1998

judgment fails to recognize that Dubois prevailed on his claims

for injunctive relief in a decision dated May 5, 1997.

Accordingly, the judgment must be amended.

Dubois contends that the amended judgment should not cover

my ruling on his reguest for attorney's fees because the matter

is collateral to the merits and, in any event, further discovery

is necessary before the issue can be resolved. I disagree. Fed. R. Civ. P. 58 does not require that a ruling on a motion for

attorney's fees must be addressed in a separate judgment. As I

explain below, the question of whether Dubois is entitled to

attorney's fees was resolved by the July 17, 1998 Order. No

further discovery is warranted. Therefore, my ruling on the

attorney's fee issue should not be excluded from the amended

judgment disposing of Dubois's claims on the merits.

B. Reconsideration of the Attorney's Fees Issue

Dubois bases his request for reconsideration of the July 17,

1998 Order primarily on evidence which he failed to present when

the motion was filed.1 Dubois concedes that this new evidence

was available when he made his original request for fees.

Nevertheless, he argues that he should be permitted to offer the

evidence now because he did not understand its significance when

he first requested attorney's fees. The short answer to Dubois's

argument is that he cannot withhold available evidence, wait for

an adverse ruling, and then seek to reopen a case by citing

evidence that he could have called to my attention before I ruled

on his request. See Havdon v. Gravson, 134 F.3d 449 (1st Cir.

1998); Lostumbo v. Bethlehem Steel, Inc., 8 F.3d 569, 570 (7th

Cir. 1993) .

1 To the extent that Dubois also relies on evidence and arguments he made in his motion for attorney's fees, I find his arguments unpersuasive. In denying Dubois's request for attorney's fees, I adopted

the evidence and arguments proffered by the government in its

memorandum opposing Dubois's request for attorney's fees. Dubois

did not seek additional discovery on the issue after the

government submitted its memorandum, he did not seek permission

to file a reply memorandum, he did not seek an evidentiary

hearing, and he did not timely seek reconsideration of the July

17, 1998 Order. Moreover, Dubois's belated suggestion that his

motion for attorney's fees should have been treated merely as a

motion for summary judgment is frivolous. Under these circum­

stances, it is simply not sufficient for Dubois to assert that he

should be allowed to offer new evidence now because he did not

understand its significance when he filed his request for

attorney's fees.

The clerk shall issue an amended judgment in the form

attached to this order. Dubois's request to alter or amend the

judgment is denied.

SO ORDERED.

Paul Barbadoro Chief Judge December , 1998

cc: Roland Dubois Jed Callen, Esq.

- 3 - Alexander Kalinski, Esq. David Neslin, Esq. Evan Slavitt, Esq. Grant Kidd, Esq. Sylvia Quast, Esq. Stephen Herm, Esq. David Leqqe, Esq. Scott Hoqan, Esq.

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