The opinion of the court was delivered by: MASTERSON
MASTERSON, District Judge
Presently before the Court are the following post-trial motions:
(1) Plaintiff's motion under Rule 59(e) of the Federal Rules of Civil Procedure to amend the judgment to include interest from the day the suit was filed, August 26, 1965;
(2) Plaintiff's motion under Rule 59(e) to amend the judgment to include attorney's fees;
(3) Defendants' motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. For the reasons set out below we will grant plaintiff's motion to amend the judgment to include interest, deny plaintiff's motion to amend the judgment to include attorney's fees and deny defendants' motion for judgment N.O.V. or in the alternative for a new trial.
I. PLAINTIFF'S MOTION FOR PRE-JUDGMENT INTEREST.
Plaintiff's motion for pre-judgment interest is based on a Michigan statute which provides:
"Interest shall be allowed on any money judgment recovered in a civil action, such interest to be calculated from the date of filing the complaint at the rate of 5% per year unless the judgment is rendered on a written instrument having a higher rate of interest in which case interest shall be computed at the rate specified in the instrument if such rate was legal at the time the instrument was executed. In no case shall the rate exceed 7% per year after the date judgment is entered. In the discretion of the judge, if a bona fide written offer of settlement in a civil action based on tort is made by the party against whom the judgment is subsequently rendered and the offer of settlement is substantially more favorable to the prevailing party than the judgment, then no interest shall be allowed beyond the date the written offer of settlement is made." Mich. Compiled Laws Annotated § 600.6013.
Under Pennsylvania law, plaintiff would only be entitled to interest from the date of judgment. 12 Purdon's Pennsylvania Statutes § 781. In order to grant plaintiff's motion for interest under the Michigan statute we must find: (1) that the motion is timely and (2) that Michigan law and not Pennsylvania law on the question of interest on a judgment applies.
Defendants contend that plaintiff's motions to amend the judgment are not timely. Rule 59(e) of the Federal Rules provide that a motion to alter or amend a judgment must be served within 10 days after entry of judgment. Since plaintiff's motions were served 28 days after entry of judgment we are urged to deny them as untimely.
Whether this motion is made under Rule 59(e) or 60(a) depends on whether the pre-judgment interest plaintiff seeks is a matter of right or merely discretionary with the Court. If discretionary, it is a Rule 59(e) motion, Gilroy v. Erie-Lackawanna R.R., 44 F.R.D. 3 (E.D.N.Y. 1968) and if a matter of right it is a Rule 60(a) motion. Merry Queen Transfer Corp. v. O'Rourke, 266 F. Supp. 605 (E.D.N.Y. 1967). We conclude that the pre-judgment interest plaintiff seeks would, assuming we decide to apply the Michigan statute, be a matter of right. The language of the statute is plain -- "shall be allowed" not "may be allowed". In a similar case it was held that a similarly worded statute allowed interest as a matter of right. Merry Queen Transfer Corp. v. O'Rourke, supra. Accordingly, we conclude that plaintiff's motion is made under Rule 60(a) not 59(e) and as such is timely.
We now turn to the conflicts of law ...