Patterson v. Mut. of Omaha Ins. Co., 8:10CV26

WESLEY PATTERSON, Plaintiff, v. MUTUAL OF OMAHA INSURANCE COMPANY, Defendant.

8:10CV26

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

December 4, 2014

MEMORANDUM AND ORDER

This matter is before the court on plaintiff Wesley Patterson's motion for attorney fees and costs and his motion to assess damages. (See Filing Nos. 97, 100). As set forth below, the court will grant and deny plaintiff's motion for attorney fees and will deny plaintiff's motion to assess damages at this time.

I. BACKGROUND

Plaintiff was a student at Prairie View A&M University ("Prairie View") and a member of its cheerleading squad during the 2007-2008 school year. (Filing No. 1) On January 23, 2008, during tumbling class, plaintiff severely injured his spinal cord. Id. Plaintiff is now a paraplegic. Id. Because of mounting medical bills, among other expenses stemming from the accident, plaintiff sought coverage through a Catastrophic Injury Insurance Policy (the "Insurance Policy") issued to the National Collegiate Athletic Association ("NCAA") for the benefit of the student athletes and student cheerleaders of NCAA member schools. (Filing No. 73-18) The defendant denied coverage for the plaintiff, asserting the plaintiff's accident was not a "covered event" under the insurance policy. (See Filing No. 10) Plaintiff then initiated suit in this court seeking a declarationof his rights under the insurance policy (i.e. that the insurance policy issued to the NCAA covered the plaintiff's accident).

On June 14, 2012, this court granted partial summary judgment in favor of the plaintiff. (Filing No. 76) The court determined that one issue remained for trial—whether the plaintiff was a member of the cheer squad on January 23, 2008, the date of the accident. The parties subsequently entered into a joint stipulation of facts (Filing No. 79) stating that "[p]laintiff Wesley Patterson would present evidence sufficient to meet his burden to prove that he was a member of the [Praire View] cheer squad on January 23, 2008, the date he was injured." Id. With the resolution of this factual dispute, there remained no genuine issues of material fact. (See Filing No. 84) Accordingly, on November 5, 2012, this court granted the plaintiff's motion for summary judgment (i.e. that the defendant was obliged to cover plaintiff under the insurance policy). Id. This court entered judgment for the plaintiff and against the defendant on November 5, 2012. (Filing No. 85)

The defendant appealed this court's judgment to the Eighth Circuit. Before doing so, however, the defendant filed a motion to stay enforcement of the judgment pending the appeal. (Filing No. 86) This court granted the motion to stay. (Filing No. 87) The Eighth Circuit ultimately affirmed this court's decision on February 28, 2014. See Patterson v. Mutual of Omaha Insurance Company, 743 F.3d 1160 (8th Cir. 2014). The Eighth Circuit issued the mandate on March 21, 2014. Filing No. 93.

Thereafter, on May 20 and May 28, 2014, the plaintiff filed motions for attorney fees and expenses, and a motion to assess damages (See Filing Nos. 97, 100) and accompanying briefs and indexes in support of such. (Filing Nos. 98, 99, 101, 102)Defendant opposes these motions. To that end, defendant filed briefs, and accompanying indexes, in opposition to the plaintiff's motion for attorney fees and expenses. (Filing Nos. 106, 113, 114, 117, 118, 119 and 125).

II. ANALYSIS

1. Attorney Fees

The plaintiff cites to NEB. REV. STAT. § 44-359 in support of his motion for attorney fees. The statute provides that

In all cases when the beneficiary or other person entitled thereto brings an action upon any type of insurance policy, except workers' compensation insurance, or upon any certificate issued by a fraternal benefit society, against any company, person, or association doing business in this state, the court, upon rendering judgment against such company, person, or association, shall allow the plaintiff a reasonable sum as an attorney's fee in addition to the amount of his or her recovery, to be taxed as part of the costs. If such cause is appealed, the appellate court shall likewise allow a reasonable sum as an attorney's fee for the appellate proceedings, except that if the plaintiff fails to obtain judgment for more than may have been offered by such company, person, or association in accordance with section 25-901, then the plaintiff shall not recover the attorney's fee provided by this section.

NEB. REV. STAT. § 44-359 (Supp. 2013). Under § 44-359, "an insurance policy beneficiary who successfully sues his or her insurance company is entitled to a reasonable attorney fee at the trial level and on appeal." Rod Rehm, P.C. v. Tamarack Amer., 261 Neb. 520, 533, 623 N.W.2d 690, 700 (2001). Moreover, the application of § 44-359 in the United States District Court for the District of Nebraska is appropriate. See Erie R. Co. v. Thompkins, 304 U.S. 64 (1938).

FED. R. CIV. P. 54(d), however, imposes certain procedural requirements with regard to a motion for attorney fees and costs. First, "a claim for attorney's fees andrelated nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages." Id. Second,

Unless a statute or a court order provides otherwise, the motion must: (i) be filed no later than 14 days after the entry of judgment; (ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the award; (iii) state the amount sought or provide a fair estimate of it; and (iv) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made.

Id. However, the Court is permitted to extend time for excusable neglect. Fed. R. CIv. P. 6(b); B.A. Const. and Management, Inc. v. Knight Enterprises, Inc., 365 F. Appx. 638, 646 (6^th Cir. 2010). The Tenth Circuit has stated:

A district court may, however, "for good cause, extend the time ... on motion made after the time has expired if the party failed to act because of excusable neglect." Fed.R.Civ.P. 6(b)(1)(B). In determining whether a party's neglect is excusable, this court considers: 1) the danger of prejudice to the opposing party, 2) the length of delay caused by the neglect and its impact on judicial proceedings, 3) the reason for delay, and whether it was in the reasonable control of the moving party, and 4) the existence of good faith on the part of the moving party. U.S. v. Torres, 372 F.3d 1159, 1162 (10th Cir.2004) (analyzing the excusable neglect standard in the context of Federal Rule of Appellate Procedure 4(b)(4), where the party filed an untimely notice of appeal); see also Quigley, 427 F.3d at 1238 (applying the Torres standard to a claim of excusable neglect under Federal Rule of Civil Procedure 6(b)). The reason for delay is an important, if not the most important, factor in this analysis. Torres, 372 F.3d at 1163.

Hamilton v. Water Whole Intern. Corp., 302 Fed. Appx. 789, 797 (10^th Cir. 2008). Plaintiff's delay in filing a motion for fees is also excusable when post trial motions suspend the finality of the judgment. Drumgold v. Callahan, 806 F. Supp.2d 428, 434 (D. Mass. 2011). Likewise, a final judgment has not occurred where challenges to remaining provisions of the complaint were still pending. Planned Parenthood Minnesota v. Daugaard, 946 F. Supp.2d 913, 922 (D.S.D. 2013) (Section 1983 case). The Eighth Circuit has defined excusable neglect as "good faith and some reasonablebasis for noncompliance with the rules." Ivy v. Kimbrough, 115 F.3d 550, 552 (8th Cir.1997).

Defendant contends that plaintiff's motion for attorney fees is not appropriate for three reasons. (See Filing No. 106) First, defendant contends that the plaintiff's motion for attorney fees at the district court level does not conform to FED. R. CIV. P. 54(d)(2)(B)(i)—i.e. that the motion was filed more than "17 months late." (Filing No. 106) Defendant premises this contention on the notion that neither the stays nor extension granted by this court affected the filing period for attorney fees. Id. This contention also relies on the notion that the defendant's appeal did not affect the filing period for attorney fees. Id Second, defendant argues that plaintiff's claim "for attorney fees . . . on appeal is time barred" because plaintiff failed to file a motion with the Eighth Circuit within "14 days of the entry of judgment . . ." as required by Fed. R. App. P. 39(d)(1) and 8th Cir. R. 39A(b).¹ (Filing No. 106) Third, defendant argues that plaintiff's attorney fees incurred after March 3, 2014, relating to the preparation of plaintiff's post-judgment motion to assess damages, ". . . is not ripe because his motion to assess damages is still pending, and he is not the prevailing party on that motion." Id.

Plaintiff asserts various arguments in support of his motion for attorney fees. First, plaintiff contends that, because defendant failed to oppose plaintiff's motion for enlargement of time for attorney fees, defendant waived any right to oppose the motion. (Filing No. 107) Plaintiff also contends that this court's order granting his summary judgment (Filing No. 84) did not dispose of all matters in this case because "[b]y the time [the plaintiff] filed his [m]otion to [a]ssess [d]amages . . . [the defendant] had yet to pay [the plaintiff] any of the past-due benefits." (Filing No. 107, at 4) Last, plaintiffargues that the doctrine of equitable tolling should apply in this case because "[plaintiff] had no notion of whether this [c]ourt's judgment would be affirmed." (Filing No. 115)

A. Attorney Fees Incurred Prior to and After the Appeal; Motions to Stay Proceedings

This court entered judgment in this case on November 5, 2012. (Filing No. 84). The Court ordered a stay of enforcement of the judgment pending appeal. Filing No. 87. The Eighth Circuit affirmed on February 28, 2014, and the mandate issued on March 21, 2014. (Filing Nos. 91, 92 and...