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Counsel Corp. v. Wasserson

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


August 24, 2010

COUNSEL CORPORATION, PLAINTIFF
v.
GARY J. WASSERSON, DEFENDANT
GARY J. WASSERSON, PLAINTIFF
v.
I-LINK CORP., ET AL. DEFENDANTS

The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION

On August 13, 2004, Counsel Corporation ("Counsel Corp") and Gary Wasserson ("Wasserson") simultaneously filed the two related underlying actions.*fn1 Now before the Court is Wasserson's Motion for Entry of Final Judgment and Award of Attorneys' Fees Pursuant to Rules 58(d) and 54(d)(2) of the Federal Rules of Civil Procedure.*fn2

On March 15, 2005, by Demand for Arbitration, Wasserson initiated an arbitration with JAMS Resolution Experts, naming five respondents: I-Link Corp. ("I-Link"); Springwell Communications, LLC ("Springwell"); Counsel Corp.; Counsel Communications, Inc. ("CCI"); and Alan Silber.*fn3 In July 2009, the Arbitrator issued a Corrected Final Award, finding that both parties were liable to each other for specified monetary damages and finding Wasserson as the prevailing party.*fn4 On March 31, 2010, the Court issued a Memorandum Opinion confirming the Corrected Final Arbitration Award and rejecting Wasserson's calculation of damages above and beyond the amounts awarded by the Arbitrator.*fn5 A more complete recitation of the factual and procedural history of this case was established in the Court's March 31 st Memorandum Opinion, which is hereby fully incorporated herein.*fn6

Wasserson now requests that the Court enter final judgment in the amount of $723,860.57, with either (1) "a deduction for the award to Counsel Corp. of $309,980.28, including the 10% interest from February 1, 2004 until April 5, 2005 for a net judgment in favor of Wasserson of $413,880.29 or [2] as two separate judgments in the amounts of $723,860.57 in favor of Wasserson and $309,980.28 in favor of Counsel Corp."*fn7 Defendants "do not oppose the entry of judgment in a 'sum certain' as [Wasserson] requests" and agree that the Court should enter one "net judgment" that reflects a setoff between the parties' awards.*fn8 Defendants, however, oppose the proposed amount of the "net judgment" and additional attorneys' fees requested by Wasserson. Defendants contend that Wasserson has attempted to add "post judgment interest" to the Award amount and correctly assert that the Arbitrator "made clear in his Corrected Final Award that the attorneys' fees and expenses 'will not bear interest.'"*fn9

Wasserson also requests that any final judgment entered by the Court be increased by $11,128.70 in attorneys' fees above the $75,000.00 in attorneys' fees already awarded by the Arbitrator "relating to these motions leading to the entry of the [Court's] March 31 Order...."*fn10

Wasserson argues that while the Arbitrator awarded him $75,000 in legal fees "through and including the date of the final Award," he is entitled to additional fees since Defendants contested payment of the Award by filing a motion in opposition to Wasserson's Motion to Confirm the Award and a separate Motion to Vacate the Award. Wasserson asserts that it is "inequitable and contrary to the spirit of the arbitration award...to impose upon Wasserson the additional costs and fees of enforcing his arbitration award,"*fn11 but provides no binding authority to support this argument upon which the Court must rely.*fn12 In contrast, Defendants highlight the fact that "the plain language of the [underlying] Employment Agreements provides that only the arbitrator can direct the non-prevailing party to reimburse the prevailing party for his attorneys' fees and expenses."*fn13

As the Court stated in its Memorandum Opinion and Order dated March 31, 2010, "judgment shall be awarded to the remaining parties pursuant to JAMS' arbitration number 14200114521, Corrected Final Award, dated July 10, 2009, which the Court hereby affirms."*fn14

The Court then fully adopted the Arbitrator's computation of damages as calculated in the Final Award.*fn15 Consistent with Arbitrator's decision, Wasserson's award totals $715,717.22 and Defendants' award totals $310,820.47, leaving a net difference of $404,896.75. The Court finds no basis to now increase the amount of the Corrected Final Award to include additional interest and/or attorneys' fees.

It is well established that civil litigants bear the costs of their own legal fees and expenses and are not entitled recovery of their attorneys' fees from an adversary, absent instances where the parties contractually agreed to a fee shifting provision or a statute expressly provides for it.*fn16

It is undisputed that neither instance applies here. The Court agrees with Defendants' assertion that "absent a specific provision in the parties' agreement or Award itself, a party is not entitled to recover its attorneys' fees related to its efforts to confirm an arbitral award or to oppose a motion to vacate an arbitral award."*fn17 As such, the Court finds that Wasserson is not entitled to additional attorneys' fees beyond the $75,000 in legal fees awarded to Wasserson in the Arbitrator's Corrected Final Award. The Court further finds that Wasserson is not entitled to post-award interest on the attorneys' fees and costs that the Arbitrator included in the Corrected Final Award. The Court will enter a final judgment award consistent with the Arbitrator's Corrected Final Award in favor of the prevailing party, Wasserson, in the amount of $715,717.22, with a deduction for the award to Defendants in the amount of $310,820.47, for a net judgment to Wasserson in the amount of $404,896.75. Accordingly, Wasserson's Motion for Entry of Final Judgment is hereby GRANTED and Wasserson's request for additional attorneys' fees and interest is hereby DENIED.

An appropriate order follows.


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