United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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
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, ¶
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.
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.
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.
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.
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.
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.
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.
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.