Foster v. Kings Park Central School District

174 F.R.D. 19, 1997 U.S. Dist. LEXIS 9501
CourtDistrict Court, E.D. New York
DecidedJune 28, 1997
DocketNo. CV 95-5254(ADS)
StatusPublished
Cited by19 cases

This text of 174 F.R.D. 19 (Foster v. Kings Park Central School District) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster v. Kings Park Central School District, 174 F.R.D. 19, 1997 U.S. Dist. LEXIS 9501 (E.D.N.Y. 1997).

Opinion

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge:

This employment discrimination case arises from the claims of the plaintiff, Dennis Foster (“Foster” or the “plaintiff’), that the defendant, Kings Park Central School District (the “School District” or “defendant”) unlawfully discriminated against him on the basis of his disability and age when it refused to hire him for several different positions, including “Superintendent of Buildings and Grounds” and “custodial cleaner.” Presently before the Court is the plaintiff’s motion for attorney’s fees and costs pursuant to Fed. R.Civ.P. 54(d)(2). The issue presented by Foster’s motion is relatively narrow, namely, whether he is entitled to an award of attorney’s fees after accepting the School District’s offer of judgment pursuant to Fed. R.Civ.P. 68.

I. Background

The relevant facts are straightforward. According to the amended complaint, the plaintiff seeks an award of damages as the result of the defendant’s allegedly unlawful age and disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and related state law. The age discrimination claims were subsequently discontinued by stipulation of the parties.

On April 10,1997, the defendant served an offer of judgment on the plaintiff pursuant to Fed.R.Civ.P. 68, stating:

Pursuant to the Federal Rules of Civil Procedure, defendant hereby offers to allow judgment to be taken against it in this action, in the amount of FOURTEEN THOUSAND and NO/100 dollars ($14,-000.00), together with costs accrued to date. The Offer of judgment is made for the purposes specified in Rule 68, and is not to be construed either as an admission that the defendant is liable in this action, or that the plaintiff has suffered any damage.

On April 18, 1997, plaintiff accepted the ■ offer. According to the defendant, during a phone conversation, it became “apparent” that attorney’s fees would not constitute part of the “costs accrued” which would be added to the $14,000 figure. These “costs” were nominal, including film and subpoena fees. The plaintiff denies that any such discussion took place, labeling “such an assertion [as] insulting.”

In any event, on May 6,1997, Foster faxed and mailed a letter to the School District seeking attorney’s fees in the amount of $14,-070 and costs in the sum of $1,533.55. The defendant rejected the application, taking the position that the plaintiff is not entitled to attorney’s fees.

As set forth above, presently before the Court is the plaintiffs motion for an award of attorney’s fees an costs pursuant to Fed. R.Civ.P. 54(d)(2). In the motion, the plaintiff requests the sums set forth above, namely $14,070 in attorney’s fees and $1533.55 in costs, plus a additional $2,985 in attorney’s fees incurred in bringing this motion.

[23]*23II. Discussion

In general, the “American Rule”, as applied in the federal courts is that each party bears its own attorney’s fees. Marek v. Chesny, 473 U.S. 1, 8, 105 S.Ct. 3012, 3016, 87 L.Ed.2d 1 (1985). However, since the -1930’s, certain exceptions to this rule have arisen including those prescribed by Congress. Id., citing, 47 U.S.C. § 407 (providing for an award of attorney’s fees under the Communications Act of 1934); 45 U.S.C. § 153(p) (providing for attorney’s fees under the Railway Labor Act); 17 U.S.C. § 40 (providing for attorney’s fees under the Copyright Act of 1909). In Rule 54(d)(2), the mechanism for obtaining such an award is set forth, providing that, in general, “[cjlaims for attorneys’ fees and related nontaxable expenses shall be made by motion ...” and “must specify the judgment and the statute, rule, or other grounds entitling the moving party to the award” Fed.R.Civ.P. 54(d)(2)(A), (B).

A. Attorney’s fees as part of costs under Rule 68

The plaintiff alleges that he is entitled to a award of attorney’s fees pursuant to Fed.R.Civ.P. 68 an the relevant employment discrimination statutes. Rule 68 provides:

At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse part serves written notice that the offer is accepted, 'either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. ... If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer____

Fed.R.Civ.P. 68 (emphasis added). The purpose of Rule 68 is to encourage settlement and avoid litigation. Marek, 473 U.S. at 5, 105 S.Ct. at 3014-15. Further, the term “costs,” as applied in Rule 68 refers “to all costs properly awardable under the relevant substantive statute or other authority.” Id. at 9, 105 S.Ct. at 3016. Accordingly, where the “statute defines ‘costs’ to include attorney’s fees, ... such fees are to be included as cost for purposes of Rule 68.” Id. As a result, Rule 68 cost include attorney’s fees provided for under civil right statutes, such as 42 U.S.C. § 1988, which provides that prevailing party is entitled to an award of attorney’s fee “as part of the costs.” Marek, 473 U.S. at 9-11, 105 S.Ct. at 3016-18; Chambers v. Manning, 169 F.R.D. 5, 8 (D.Conn.1996) (“Attorney’s fees are included in costs only when the underlying statute so define them”). This rule applies with equal force to employment discrimination statutes containing similar provisions. See Lyte v. Sara Lee Corp.,

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Cite This Page — Counsel Stack

Bluebook (online)
174 F.R.D. 19, 1997 U.S. Dist. LEXIS 9501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-kings-park-central-school-district-nyed-1997.