Anyone interested in attorneys fees?
Are you filing adversaries and motions to collect money from creditors and other miscreants?
Then it’s worth looking at two snippets about attorneys fees that have floated across my radar screen.
One of the participants at the Litigating on a Shoe String roundtable at the NACBA convention pointed out the deadline in Rule 54 to request attorneys fees.
Rule 54 contains a 14 day deadline after entry of judgment in which you can move for allowance of attorneys fees. FRCP 54(d).
Another voice at the roundtable noted that local rules may alter that in your district.
But wait: in bankruptcy adversaries and contested matters, only subsections a-c of the federal rule apply.
So, if your courtroom victory entitles you to attorneys fees, check your local bankruptcy rules . In my division, I saw a firm lose out on more than $50,000 in attorneys fees because their motion for fees was late.
Beware of FRBP 7008 warned the headline in an ABI Journal article in March. Absent strict compliance, you may lose your attorneys fees.
Subsection (b) of the rule reads:
(b) Attorney’s Fees. A request for an award of attorney’s fees shall be pleaded as a claim in a complaint, cross-claim, third-party complaint, answer, or reply as may be appropriate.
The authors cited a number Ninth Circuit cases addressing the rule. Fotouhi v. Mansdorf, 427 BR 798 (ND CA 2010); DiSalvo, 221 BR 769 ( BAP 9th 1996) and Odom, 113 BR 623 (Bankr. CD CA 1990).
Pretty disappointing to be the counsel who wins the case, and loses the attorneys fees for failure to properly plead a right to fees. Some reported cases treat a tardy request for fees as an amendment to the pleadings. Personally, I’d rather not be in the position of having to cover my bases at trial.
Be explicit about what you want, up front.