Motion for Award of Costs and Fees is Not a Post-Judgment Motion Pursuant to Rule 59

In Ford v. Jefferson County and Jefferson County Juvenile Services, No. 2060169 (Ala. Civ. App. February 2, 2008), the court held that a post-trial request for costs and fees is not a post-judgment motion pursuant to Rule 59.  Therefore, it was not subject to the 30-day time requirement set forth in Rule 59(e).

Following lengthy trial proceedings and several interlocutory appeals, the proceedings in this case culminated in a final judgment on April 4, 2006.  On May 5, 2006, the defendants filed a petition for the award of attorney fees, costs, and expenses.  On June 2, 2006, the plaintiffs filed a motion to strike the petition.  On September 22, 2006, the trial court found that the claims raised by the plaintiffs were frivolous and awarded attorneys fees and costs to the defendants.  

On appeal, the plaintiffs argued that the trial court erred in awarding fees and expenses because the petition seeking them was untimely.  The officers asserted that, pursuant to Federal Rule of Civil Procedure 54, the fee request was required to have been filed within 14 days of the entry of the judgment.  Alternatively, they argued that, pursuant to Alabama Rule of Civil Procedure 59, it was to have been filed within 30 days of the date of the judgment. 

Although neither the FRCP Rule 54 nor the ARCP Rule 59 issue was argued before the trial court, the Rule 59 issue was considered because the plaintiffs argued that the trial court lacked jurisdiction to consider the petition because it was untimely pursuant to Rule 59. 

The court disagreed, however, noting that the assessment of costs is merely incidental to the judgment and may be done at any time prior to issuance of execution.  Therefore, the petition, insofar as it related to costs, was not subject to the 30-day time requirement set forth in Rule 59(e).  Similarly, the US Supreme Court has held that a request for an award of attorney fees pursuant to civil rights statutes is not a motion to alter or amend the judgment.  Accordingly, the petition was not required to have been filed within 30 days.