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Duran v. Martinez

United States District Court, D. New Mexico

March 17, 2017

DWIGHT DURAN, et al., Plaintiffs,
v.
SUSANA MARTINEZ, Governor, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court upon Plaintiffs' Motion to Enforce Settlement Agreement and for Order Awarding Attorneys' Fees and Litigation Expenses (Motion to Enforce), filed on January 20, 2017. (Doc. 2806). Defendants filed a response on February 3, 2017, and Plaintiffs filed a reply on February 8, 2017. (Docs. 2808 and 2810). Having reviewed the Motion to Enforce and the accompanying briefs, the Court grants the Motion to Enforce, in part, and denies it, in part

         A. Background

         In February 2016, Plaintiffs filed Plaintiffs' Motion for Emergency Declaratory and Injunctive Relief, for a Finding of Contempt and for Orders Imposing Coercive and Compensatory Remedial Relief (Emergency Motion) regarding the permanent injunction prohibiting double-celling. (Doc. 2727). In May 2016, the parties settled, in principle, the dispute raised in the Emergency Motion. (Doc. 2760). On August 31, 2016, the Court granted the parties' Joint Motion for Approval of Settlement Agreement (Doc. 2766). (Doc. 2768). The Settlement Agreement provided that “Plaintiffs do not waive any claim for attorneys' fees incurred in connection with the [Emergency Motion]….” (Doc. 2766-1) at 5, ¶ E.

         Also, on August 31, 2016, Plaintiffs sent to defense counsel a request for payment of attorneys' fees and expenses incurred in prosecuting the Emergency Motion. (Doc. 2806) at ¶ 5. Plaintiffs state that

[a]fter repeated inquiries about a response to the request for payment, defense counsel finally responded nearly six weeks later, on October 11, 2016, the date they had been given by [plaintiffs' counsel] on October 3, 2106 [sic] as the deadline for a response from them before plaintiffs' counsel would file a motion for attorneys' fees and expenses absent any response to the request for payment.

Id. Following negotiations, the parties agreed on November 8, 2016, that Defendants would pay $29, 838.01 in attorneys' fees and expenses. Id.; Email exchanges (Doc. 2810-1) at 5-6; Email exchanges (Doc. 2810-2).

         On November 16, 2016, Plaintiffs' counsel wrote defense counsel regarding when Plaintiffs could expect payment of the attorneys' fees and expenses. Email exchanges (Doc. 2810-1) at 5. That same day, defense counsel responded that she sent the bill to Jim Brewster and Brian Fitzgerald and that she would get back to Plaintiffs' counsel as soon as she could. Id.

         Having heard nothing further from defense counsel Plaintiffs' counsel wrote defense counsel on November 23, 2016 about the status of the payment. Id. Later in the day, defense counsel responded that Brewster was trying to determine if the New Mexico Corrections Department (NMCD) would the pay the bill or the Risk Management Division (RMD). Id. at 4. Defense counsel also stated that she would get back to Plaintiffs' counsel. Id.

         Again, not having heard back from defense counsel, Plaintiffs' counsel wrote defense counsel on December 7, 2016, that if a dispute remains between NMCD and RMD, one of them should pay the bill and then they can later resolve their dispute. Id. Plaintiffs' counsel also informed defense counsel that he would file a motion for enforcement of their agreement “if that is what it takes.” Id. Later that morning, defense counsel stated that the invoice was submitted to the “DOC pay master” and that, as soon as she found out, she would let Plaintiffs' counsel know when to expect the invoice to be processed. Id. at 3-4. A week later, defense counsel asked for W-9 forms for two of Plaintiffs' counsel, which they provided that same day. Id. at 2.

         On December 19, 2016, Plaintiffs' counsel wrote defense counsel that it had been almost two weeks since defense counsel indicated that the invoice was submitted and that he had not heard back from her about when to expect the invoice to be processed. Id. at 3. Plaintiffs' counsel asked when Plaintiffs could expect a check. Id. That day, Defense counsel responded she would inquire with Fitzgerald the next day about the status of the check and let Plaintiffs' counsel know what the status was. Id.

         Once more, not having heard anything from defense counsel, Plaintiffs' counsel wrote on January 3, 2017, to defense counsel that he would “file a motion to enforce and seek fees and costs including the fees incurred in the efforts” to get “paid over the last several months, ” if payment was not made by January 12, 2017. Id. at 2-3. Defense counsel responded in the afternoon that the bill would “be sent to DFA [Department of Finance and Administration] in a day or so” along with a justification for payment so that the bill would finally be processed for payment. Id. at 2. Defense counsel stated that she did not know how long DFA would take to review and pay the bill. Id. She further stated, again, that she would keep Plaintiffs' counsel advised. Id.

         On January 16, 2017, Plaintiffs' counsel wrote defense counsel that he did not file the motion to enforce and seek attorneys' fees and expenses on January 12, 2017, based on her representation that the bill was being sent to DFA. Id. at 1. He also noted that he had not heard back from defense counsel regarding whether the bill was, in fact, sent to DFA, when the bill was sent to DFA, or what the processing “turnaround time” would be. Id. That afternoon, defense counsel responded that she was forwarding Plaintiffs' counsel's email to Brewster and Fitzgerald at the Department of Corrections. Id.

         Plaintiffs' counsel, having received no further communications on the status of the bill, filed the Motion to Enforce on January 20, 2017. (Doc. 2806). In doing so, Plaintiffs did not formally seek Defendants' concurrence in the Motion to Enforce, but stated that “Plaintiffs reasonably believe that due to the nature of this motion, defendants do not concur in it.” Id. at ¶ 1. In their Motion to Enforce, Plaintiffs seek (1) the $29, 838.01 for attorneys' fees and expenses incurred in the successful prosecution of the Emergency Motion, and (2) reasonable attorneys' fees incurred in filing the Motion to Enforce. On February 2, 2017, a day before Defendants filed their response to the Motion to Enforce, DFA approved the payment of the bill and Plaintiffs' counsel were paid $29, 838.01. (Doc. 2808) at ¶¶ 9-12.

         B. ...


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