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Clark v. Podesta

United States District Court, D. Idaho

October 26, 2017

ERIC R. CLARK, Attorney at Law, and CLARK ASSOCIATES, PLCC, Plaintiffs,
v.
JEFFREY J. PODESTA, individually, and as the agent of Street Search, LLC, and STREET SEARCH LLC, a New Jersey limited liability company, Defendants.

          MEMORANDUM DECISION AND ORDER

          HONORABLE CANDY W. DALE UNITED STATES MAGISTRATE JUDGE

         BACKGROUND

         Pending before the Court is Plaintiff Eric Clark's motion for post-judgment attorney fees. (Dkt. 165.) On January 18, 2017, the Court entered a judgment awarding $129, 576.76 with post-judgment interest to Plaintiffs Eric R. Clark, Attorney at Law, and Clark & Associates, PLLC (“Clark”) against Defendants Jeffrey J. Podesta, individually, and as the agent of Street Search, LLC, and Street Search, LLC (“Podesta”). (Dkt. 118.) The judgment was entered pursuant to the parties' Stipulation for Entry of Judgment (Dkt. 117), which expressly stated that each party would “bear their own attorney fees and costs incurred until entry of judgment.” Since that time, the parties have been engaged in post-judgment discovery related to Clark's efforts to collect the judgment.

         In addition to post-judgment collection efforts through this Court, Clark filed a collections lawsuit in New Jersey-Podesta's state of residence. Clark hired a New Jersey-based firm on a contingency fee basis. The firm will receive thirty percent of any amount collected from Podesta. If successful in collecting the entire judgment of $129, 576.76, the firm's contingency fee would be $38, 873.30 plus an additional thirty percent of the accrued post-judgment interest. Clark now demands this sum should be awarded as post-judgment attorney fees. Additionally, Clark asks the Court to award him $68.00 for administrative post-judgment costs. As of the date of this order, the New Jersey action is ongoing.

         In support of his motion, Clark cites Section 12-120(5) of the Idaho Code, which provides for an award of post-judgment attorney fees and costs for parties entitled under the code to pre-judgment fees and costs. Clark argues the award of post-judgment fees is not contingent on a party actually being awarded pre-judgment fees-but only that the party was entitled by Idaho law to have received a pre-judgment fee award.

         Clark claims he was entitled to receive an award of fees pursuant to Section 12-120(3), which provides an award of fees to prevailing parties in recovery actions related to commercial transactions. Clark asserts that, because the provision of legal services is a commercial transaction, and because he was the prevailing party, even if partially by stipulation, he is entitled to an award of reasonable post-judgment fees and costs.

         Podesta challenges Clark's motion on multiple bases. First, he contends the motion is untimely pursuant to Idaho Rules of Civil Procedure 54(d)(1)(F) and 54(d)(5). Podesta argues Clark was required by Rule 54(d)(5) to bring his motion for post-judgment attorney fees within 14 days after entry of the judgment. Podesta cites Allison v. Briggs, Inc., a 1992 case where the Idaho Supreme Court held that post-judgment attorney fees were not authorized under then Section 12-120(3) of the Idaho Code. 826 P.2d 916 (1992). The court also declined to expand the reading of Rule 54(d)(1)(F) to allow for recovery of post-judgment fees other than those expressly incurred for the service of the writ of execution upon judgment.

         Podesta posits, that although the applicable section of the Idaho Code was amended after the Allison decision and now clearly allows for post-judgment attorney fees under Section 12-120(5), Idaho Rule of Civil Procedure 54(d)(4) applies-requiring a party seeking post-judgment fees and costs under Section 12-120(5) to file a memorandum of costs within 14 days after the entry of judgment. Marmor v. Marmor, 2014 Ida. App. Unpub. LEXIS 271 (Ct. App. 2014).

         Second, Podesta argues that Clark has not actually incurred any post-judgment attorney fees at this point in time. The New Jersey firm is working on a contingency basis, and will not be paid until the conclusion of the New Jersey action.

         For the reasons that follow, the Court finds that Clark's motion is untimely and will deny it without prejudice.

         DISCUSSION

         The Court's subject matter jurisdiction over this case is based in diversity. 28 U.S.C. § 1332. As such, state law is applied to resolve all substantive questions. Erie R.R. v. Thompkins, 304 U.S. 64 (1938). Federal law is applied to resolve all procedural questions. Id. at 92. The determination of whether to award fees is a substantive question when a state has enacted a statute where the award of fees is tied to the outcome of the case-in other words, where a state statute enables a court to award fees to prevailing parties. Chambers v. NASCO, Inc., 501 U.S. 32, 34, (1991); See also Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 260 n. 31 (1975).

         The determination of whether to award fees is a substantive question in this case. Here, Section 12-120(3) of Idaho Code provides that a court may award fees to prevailing parties to recover for services in any commercial transaction. It reads as follows:

In any civil action to recover on an open account, account stated, note, bill, negotiable instrument, guaranty, or contract relating to the purchase or sale of goods, wares, merchandise, or services and in any commercial transaction unless otherwise provided by law, the prevailing party shall be allowed a reasonable ...

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