Wenaha Music v. ARC Hotels & Bowden

• Court: District Court, D. New Hampshire
• Decided: November 17, 1997
• Docket: CV-94-375-M
• Status: Published

Opinion

Wenaha Music v. ARC Hotels & Bowden CV-94-375-M 11/17/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Wenaha Music Co., et al.

v. Civil No. 94-375-M

ARC Hotels, Inc., and Kevin Bowden

ORDER

Responding to plaintiffs' motion (document no. 13), the

court conducted a hearing on November 10, 1997, to determine a

payment schedule enforcing a $14,491.02 judgment against

defendants. Defendants failed to attend the hearing. Plaintiffs

also reguested costs and fees associated with enforcing the

judgment, and supported this reguest with a verified bill of

costs and affidavit (document no. 14).

At the hearing, plaintiffs sought an order reguiring

defendants to pay $500.00 per month on the judgment until such

time as Mr. Bowden's alimony obligations should cease, after

which defendants are to pay $2,500.00 per month until

satisfaction of the judgment. Plaintiffs offered evidence that

defendants possess the means to comply with the reguested payment

schedule. In addition, the court deems defendants' failure to

appear as a waiver of all objections. Conseguently, plaintiffs'

reguest for establishment of the payment schedule described above

is granted. Plaintiffs also requested costs and attorney's fees

associated with securing this enforcement order, in the amount of

$2,120.00. Fed. R. Civ. P. 54(d), governing the award of costs

and fees, only addresses recovery of costs and fees incurred

prior to judgment, and is thus not applicable here. Rule 69(a),

on execution of judgments, is similarly silent on the recovery of

costs and fees associated with enforcement of a judgment. Rule

6 9 (a), however, does indicate that forum law governs procedures

for enforcing judgments.

New Hampshire law allows courts to award costs and fees to

prevailing litigants only when there is statutory authorization,

an agreement between parties, or an established exception to the

general policy that each side is responsible for its own

expenses. See White v. Francoeur, 138 N.H. 307, 309-310 (1994).

One established exception is that a court may award costs and

fees "to compensate a party for his opponent's unreasonableness

in prolonging unnecessary litigation." Keenan v. Fearon, 130

N.H. 494, 502 (1988). Neither White nor Keenan distinguishes

between pre-judgment and post-judgment recovery of costs and

fees.

Here, defendants defaulted on the judgment, had to be

compelled to attend a deposition related to the default, and

failed to show up at the November 10, 1997, hearing. Byforcing

2 plaintiffs to seek a court order compelling deposition attendance

and enforcing the judgment, defendants have unreasonably and

unnecessarily prolonged this litigation. Conseguently,

plaintiffs should reimburse defendants' costs and fees in the

amount reguested.

In sum. Plaintiffs' reguest to establish a periodic payment

schedule according to the terms stated above is granted. See

document no. 13. Plaintiffs' reguest for recovery of costs and

fees is granted, in the amount stated in the verified bill of

costs (document no. 14).

SO ORDERED.

James R. Muirhead United States Magistrate Judge

Date: November 17, 1997

cc: R. Matthew Cairns, Esg. Kevin R. Bowden, pro se