Sit N' Stay Pet Servs. Inc. v. Hoffman

SIT N' STAY PET SERVICES INC., Plaintiff, v. CARRIE HOFFMAN, Defendant.

17-CV-00116-LJV-JJM

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

February 1, 2019

REPORT AND RECOMMENDATION

Before the court are plaintiff's motions for an award of attorney's fees pursuant to 15 U.S.C. §1117(a) [43],¹ and for relief under Fed. R. Civ. P. ("Rule") 6(b) [45], which have been referred to me by District Judge Lawrence J. Vilardo for initial consideration [53]. Conferences regarding the motions were held on December 19, 2018 and January 24, 2019 [46, 52]. Having reviewed the parties' submissions [43, 45, 48, 49, 51], for the following reasons I recommend that both motions be denied.

BACKGROUND

Plaintiff commenced this action on February 7, 2017, seeking relief for alleged violations of the Lanham Act, 15 U.S.C. §1051 et seq., New York common law trademark infringement and unfair competition, and violation of New York General Business Law §349. See Complaint [1]; Amended Complaint [23]. On August 14, 2018 Judge Vilardo scheduled a bench trial to commence on October 9, 2018 [36]. On the date set for trial, the parties filed a"Stipulation To Dismiss and Order" [40] and "Settlement Agreement" [40-1], which Judge Vilardo "So Ordered" [42].

The Stipulation provided that "[t]his action is hereby dismissed with prejudice subject to the terms of the Stipulation and Settlement Agreement" ([40], p. 4 of 12), and that the court retains jurisdiction to "hear and decide post-settlement motions, such as . . . for an award of attorney's fees [and to] enforce the terms of this Stipulation". Id., §§7.1, 7.2. One of those terms was that "[p]laintiff's motion for attorney's fees and costs shall be due sixty (60) days after entry of this Order" (id., §3), namely "on or before Monday, December 10, 2018". Fox Declaration [43-9], ¶5. However, the motion [43] was not served or filed until December 12, 2018.

Plaintiff's attorney, Steven Fox, states that he attempted to electronically file the motion for attorney's fees shortly before 10:00 p.m. on December 10, 2018 but was unable to do so, and that that the clerk's office was unavailable to assist him at that late hour. Fox Declaration [45-1], ¶¶5, 6, 10. He then e-mailed to Judge Vilardo's chambers and defense counsel a hyperlink for accessing the motion papers e court and defense counsel (id., ¶¶11-14) and, with the assistance of the clerk's office, was able to docket the motion on December 12, 2018. Id., ¶17. Therefore, plaintiff now moves "for an Order pursuant to Rule 6(b)(1)(B) granting . . . Nunc Pro Tunc Filing of Plaintiffs Motion for Attorneys' Fees, or in the alternative extending the time to file said motion from December 10, 2018 until December 12, 2018". [45].

DISCUSSION

A. The Fee Motion Cannot Retroactively Be Deemed Timely.

"[T]he service and filing of papers supporting and responding to a motion cannot be left to the volition of the individual litigant. Instead, such actions must be controlled byclearly defined rules designed to optimize fairness and efficiency." United States v. International Business Machines Corp., 68 F.R.D. 613, 615 (S.D.N.Y. 1975). Rule 5 requires that a motion be both served on opposing counsel and filed with the court, and clearly defines how that is to occur.

Rule 5(b)(2)(E) allows a document to be served electronically by "filing it with the court's electronic-filing system or sending it by other electronic means that the person consented to in writing". Mr. Fox admits that he did not file the motion with the court's electronic filing system on the evening of December 10, 2018, because he believed that "CM/ECF would not accept any filings". Fox Declaration [45-1]. Nor does he suggest that defendant consented in writing to electronic service other than via CM/ECF; and "[a]bsent prior written consent, emailing . . . [does] not meet the requirements of Rule 5". Salsman v. Access Systems Americas, Inc., 2010 WL 3743765, *2 (N.D. Cal. 2010). See also Administrative Procedures Guide for Electronic Filing, §2(F)(v) ("[e]-mailing . . . a pleading or document to any party shall not constitute service") (emphasis in original).

Courts "have no power to rewrite the Rules". Harris v. Nelson, 394 U.S. 286, 298 (1969). Therefore, this court may not deem the motion to have been served by the December 10, 2018 deadline - and since Rule 5 requires both service and filing, it likewise may not grant plaintiff's request to treat the fee motion [43] as having been "filed on the date due"(plaintiff's Memorandum of Law, [45-8], p. 3).²

B. The Agreed-Upon Deadline for the Fee Motion Should Not Be Extended.

In the alternative, plaintiff requests "that the due date be extended, nunc pro tunc, to December 12, 2018". Plaintiff's Memorandum of Law, [45-8], p. 3. Plaintiff relies upon Rule 6(b)(1)(B), which provides that "[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time . . . on motion made after the time has expired if the party failed to act because of excusable neglect".

Plaintiff argues that the court should consider "the danger of prejudice . . . the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith". Id., p. 1 (quoting Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395 (1993)).

1. The Reason for the Delay

Plaintiff argues that "[t]he reason for the delay was an impediment F ox encountered within the CM/ECF portal. It was not law office failure through neglect, nor inadvertence, nor ignorance of the rules, nor mistakes construing the rules". Plaintiff's Memorandum of Law [45-8], p. 2. I disagree. Mr. Fox knew of the deadline since October 9, 2018, at the latest [42]. He began to research entitlement to a fee award as early as August 16, 2018 ([43-15], p. 6 of 9), and began drafting the fee motion on October 2, 2018 (id., p. 8 of 9). Yet he waited until 10 p.m. on the day it the motion was due to attempt service and filing. "When parties wait until the last minute to comply with a deadline, they are playing with fire." Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir. 1996).

Plaintiff argues that "[t]he delay was not within the reasonable control of the moving party". Plaintiff's Memorandum of Law [45-8], p. 2. Again, I disagree. "[R]egistered users are strongly encouraged to file all documents during normal working hours of the Clerk's Office." Administrative Procedures Guide for Electronic Filing, §2(V). Had Mr. Fox done so, he could have served and filed successfully with assistance from that office, as he did on December 12, 2018. Fox Declaration [45-1], ¶17.

In any event, Mr. Fox had other options. Even at that late hour (December 10 at 10 p.m.), he could have served the motion by mail pursuant to Rule 5(b)(2)(C). "[S]ervice under Rule 5(b) is accomplished when the envelope is deposited at a post office or in a mail box", Greene v. WCI Holdings Corp., 136 F.3d 313, 315 (2d Cir. 1998), even after "the close of business or . . . the last mail pick-up of the day". Sterling v. Interlake Industries Inc., 154 F.R.D. 579, 584 (E.D.N.Y. 1994). He could then have filed the motion within "a reasonable time after service" under Rule 5(d)(1(A). Therefore, I find no good reason for plaintiff's delay in moving for attorney's fees.

2. The Absence of Prejudice

"Plaintiff asserts that there is no danger of prejudice to the nonmoving party." Plaintiff's Memorandum of Law [45-8], p. 1. However, prejudice (or lack thereof) is irrelevant to the applicability of a statute of limitations. See Mitchell v. Goord, 2011 WL 4747878, *4 (W.D.N.Y.), adopted, 2011 WL 4753456 (W.D.N.Y. 2011) ("[e]ven if Mitchell could demonstrate good cause and an absence of prejudice, Mitchell's claims are nonetheless time-barred under the applicable statute of limitations"); In re Eastman Kodak Co., 479 B.R. 280, 306, n. 14 (Bk. S.D.N.Y. 2012) ("Kodak can prevail on the statute of limitations argument without ashowing of prejudice"). For that reason, it is well settled that Rule 6(b) "does not permit extension of a statute of limitations". Caro v. United States, 2009 WL 3273847, *3 (S.D.N.Y. Oct. 14, 2009), adopted, 2010 WL 935281 (S.D.N.Y. 2010); O'Malley v. Town of Egremont, 453 F. Supp. 2d 240, 248 (D. Mass. 2006).

The same reasoning should apply to the 60-day contractual deadline for the fee motion. "The parties may cut back on [a] Statute of Limitations by agreeing that any suit must be commenced within a shorter period than is prescribed by law. Such an agreement does not conflict with public policy but, in fact, more effectively secures the end sought to be attained by the statute of limitations." John J. Kassner & Co. v. City of New York, 46 N.Y.2d 544, 550-51 (1979).³ Thus, in Maving v. Maving, 125 A.D.3d 1290 (4th Dept. 2015), the court dismissed as time barred a motion for attorney's fees brought beyond the deadline to which the parties had agreed. "The parties' stipulation of settlement, which was incorporated but not merged into the judgment of divorce, provided that defendant could make an application for attorneys' fees within 15 days of the date of the stipulation. Defendant's attorney, however, did not file the application until almost six months after the date of the stipulation . . . . [T]he unilateral mistake of defendant's attorney does not excuse defendant's failure to comply with the terms of a stipulation where, as here, the language in the stipulation is clear, unequivocal, and unambiguous." Id. at 1290-91.

Plaintiff argues that "the settlement agreement in the case at bar lost its identity as a private contract. The agreement merged with the order, was subsumed by the order and is therefore governed by rules concerning orders." Plaintiff's Supplemental Memorandum of Law [48], p. 3. However, plaintiff "obtained a settlement...