44 Liquormart, Inc. v. State of R.I.

Page 437

940 F.Supp. 437

44 LIQUORMART, INC. and People's Super Liquor Stores, Inc., Plaintiffs, v. The STATE OF RHODE ISLAND, Defendant.

C.A. No. 92-0115/P.

United States District Court, D. Rhode Island.

September 18, 1996.

Barry J. Kusinitz, Corrente, Brill & Kusinitz, Providence, RI, Evan T. Lawson, Lawson & Weitzen, Boston, MA, for Plaintiffs.

Rebecca Tedford Partington, Office of the Attorney General, Providence, RI, for Defendant.

ORDER AND MEMORANDUM

PETTINE, Senior District Judge.

In February, 1992, plaintiffs, 44 Liquormart, Inc. and Peoples' Super Liquor Stores, Inc., both licensed retailers of alcoholic beverages, filed an action against the Rhode Island Liquor Control Administrator ("Administrator"), Kate F. Racine, seeking a declaratory judgment that Rhode Island statutes and their enforcement by the Administrator violated the First and Fourteenth Amendments, as well as various provisions of federal law. Specifically, plaintiffs challenged the constitutionality of Rhode Island Gen. Law § 3-8-7 (1987), which prohibits retailers of alcoholic beverages from advertising the price of alcohol, and Rhode Island Gen. Law § 3-8-8.1 (1987), which prohibits the media from advertising the price of alcoholic beverages. Subsequently, the Rhode Island Liquor Stores Association intervened as a defendant, and the State of Rhode Island replaced the Administrator as the principal defendant.

On August 10, 1993, I issued a decision in favor of plaintiffs, finding that the Rhode Island provisions violated the United States Constitution because they did not "directly advance" Rhode Island's interest in reducing alcoholic consumption and were "more extensive than necessary to serve that interest." 44 Liquor Mart, Inc. v. Racine, 829 F.Supp. 543, 555 (D.R.I.1993). The Court of Appeals for the First Circuit subsequently reversed this decision. 44 Liquormart, Inc. v. Rhode Island, 39 F.3d 5 (1st Cir.1994).

Plaintiffs appealed and the Supreme Court granted certiorari. 514 U.S. ___, 115 S.Ct. 1821, 131 L.Ed.2d 743 (1995). Attorneys for both parties presented convincing arguments to the Supreme Court. Nonetheless, on May 13, 1996, after a well-fought battle, the United States Supreme Court reversed the First Circuit and rendered a decision in favor of plaintiffs. The Supreme Court found that Rhode Island's "advertising ban is an abridgment of speech protected by the First Amendment and that it is not shielded from the Twenty-first Amendment." 44 Liquormart, Inc. v. Rhode Island, ___ U.S. ___, 116 S.Ct. 1495, 1501, 134 L.Ed.2d 711 (1996). Accordingly, on June 17, 1996, the First Circuit issued an amended mandate affirming my August 10, 1993 judgment.

Four weeks later, on August 16, 1996, plaintiffs filed a motion for attorneys' fees and costs pursuant to 42 U.S.C. § 1988 ("§ 1988"), asking me to award the plaintiffs attorneys' fees in the amount of $256,349.50 and other costs in the amount of $30,625.30. Defendant timely filed an objection to plaintiffs' motion asserting that: (1) plaintiffs failed to specifically plead attorneys' fees in their complaint as required by Federal Rule of Civil Procedure 9(g) ("Rule 9"); and (2) plaintiffs were time barred by application of Federal Rule of Civil Procedure 54(d)(2)(B) ("Rule 54"). Plaintiffs responded by filing a motion, pursuant to Federal Rule of Civil Procedure 6(b) ("Rule 6") for an enlargement of time to apply for attorneys' fees and costs. Defendant objected to this motion in a timely manner.

For the reasons discussed below, I deny plaintiffs' Rule 6(b) motion for an enlargement of time and conclude that plaintiffs' § 1988 motion for attorneys' fees is time barred by the application of Rule 54.

I. Introduction

Defendant objects to plaintiffs' motion for attorneys' fees on the grounds that: (1) Rule 9, which provides that litigants must specifically plead "special damages" bars plaintiffs' motion because they failed to specifically plead § 1988 attorneys' fees in their complaint; and (2) plaintiff's § 1988 motion was filed two weeks beyond the time limit set forth in Rule 54. Plaintiffs argue that neither of these objections has merit. First, plaintiffs argue that Rule 9 does not require that litigants specially plead § 1988 attorneys' fees because such fees are not "special damages." Second, plaintiffs assert that pursuant to Rule 6(b), I should overlook their failure to comply with Rule 54's time restrictions because this failure is a result of "excusable neglect" pursuant to Rule 6(d). I consider each of these arguments in turn.

II. Items of "Special Damages" Under Rule 9

Rule 9(g) provides: "When items of special damage are claimed, they shall be specifically stated." Fed.R.Civ.P. 9(g). Whether a specific claim for relief constitutes "special damages" is not always a clear, and "special damages" are defined as:

those elements of damages that are the natural, but not the necessary, consequence of defendant's conduct, and usually stem from the particular circumstances of the case. Unfortunately, in many contexts, the line between the two is not clear and the pleader must exercise caution whenever he is seeking to recover any "unusual" damage items.

Wright & Miller, Federal Practice & Procedure: Civ.2d § 1310 [emphasis added.] It is clear, however, that a court properly bars recovery of those items of "special damages" which are not specifically pled. Wright & Miller, Federal Practice & Procedure: Civ.2d § 1312.

Attorneys' fees are generally considered items of "special damages" which must be specifically pled under Rule 9. See, Maidmore Realty Co., Inc. v. Maidmore Realty Co., Inc., 474 F.2d 840 (3d Cir.1973); In re Odom, 113 B.R. 623 (C.D.Cal.Bankr.1990); Wilson v. William Hall Chevrolet, Inc., 871 F.Supp. 279 (S.D.Miss.1994); Hartford Police F.C.U. v. DeMaio, 158 B.R. 890 (D.Conn. Bankr.1993); Cotton Bros. Baking Co., Inc. v. Industrial Risk Insurers, 102 F.R.D. 964 (W.D.La.1984); Western Casualty and Surety Company v. Southwestern Bell Telephone Company, 396 F.2d 351 (8th Cir.1968); 5 Wright & Miller, Federal Practice & Procedure: Civ.2d § 1310.

Some court decisions, however, suggest that failure to specifically plead for § 1988 attorneys' fees may not bar their recovery. For example, the Sixth Circuit awarded § 1988 attorneys' fees to plaintiffs despite the fact that plaintiffs' claim did not rely specifically upon 42 U.S.C. § 1983, one of the civil rights provisions listed in § 1988. Americans United for Separation of Church and State v. School District of City of Grand Rapids, 835 F.2d 627 (6th Cir.1987). According to the court, plaintiffs allegations, upon which they prevailed, "were sufficient to state a cause of action under § 1983." Id. at 632. Therefore, said the court, "plaintiffs satisfied the requirements of § 1988 in that they prevailed in an action to enforce a provision of § 1983..." Id. at 633. From this, it can be argued that if plaintiffs are not required to specifically cite 42 U.S.C. § 1983 in the complaint to obtain § 1988 attorneys' fees, than plaintiffs need not specifically cite § 1988 to obtain attorneys' fees.

Nonetheless, not all courts appear to agree with this reasoning. For example, in Fitzgerald v. City of Philadelphia, the court determined that plaintiff "is not entitled to counsel fees under 42 U.S.C. § 1988 because, having neither pleaded nor argued a right to fees under that statute in the trial court, he waived the same." Fitzgerald v. City of Philadelphia, 87 Pa.Cmwlth. 482, 489, 487 A.2d 485, 490 (Cmwlth.Ct.Penn.1985).

In sum, despite the general understanding that attorneys' fees are items of "special damages" that must be specifically pled, there may be merit to plaintiffs' argument that their failure to specifically request § 1988 attorneys' fees in their complaint does not bar their post-judgment motion for attorneys' fees. However, because I conclude that Rule 54's time restrictions bar plaintiffs' recovery, I do not need to decide this issue.

III. Plaintiffs Have Failed to Show "Excusable Neglect" For Their Failure to Comply With Fed.R.Civ.P. 54

Plaintiffs invoke Rule 6 to argue that I should overlook their failure to comply with Rule 54, arguing that their delay in filing the § 1988 motion results from "excusable neglect."¹ Rule 6(b) provides:

(b) Enlargement. When by these rules ... an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion ... (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect ...

Fed.R.Civ.P. 6(b). The Supreme Court discussed at length the "excusable neglect" standard in Pioneer Inv. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). In Pioneer, the Court defined "excusable neglect" for purposes of Federal Rules of Bankruptcy Procedure 9006(b)(1) ("Rule 9006(b)"), which permits bankruptcy courts to allow creditors to file claims after the imposed "bar date," or deadline for filing such claims. The Pioneer Court's discussion of "excusable neglect" for purposes of Rule 9006(b) is relevant here because, in describing the Rule 9006(b) "excusable neglect" standard, the Court specifically referred to Rule 6(b). The Court pointed out that, "9006(b)(1) was patterned after 6(b) of the [Federal Rules of Civil Procedure]" Id. at 391, 113 S.Ct. at 1496.² The Court then defined the "excusable neglect" standard:

Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute "excusable" neglect, it is clear that "excusable neglect" under Rule 6(b) is a somewhat "elastic concept" and is not limited strictly to omissions caused by circumstances beyond the control of the movant.

Id. at 392, 113 S.Ct. at 1496 [footnotes omitted]. Although "excusable neglect" is an "elastic concept," the Court listed several factors for lower courts to...