(7th Cir.) (stating that under fee-shifting statutes, prevailing parties seek attorneys' fees as costs subsequent to the judgment), cert. denied, 133 L. Ed. 2d 491, 116 S. Ct. 566 (1995). Caremark argues that Coram's request for fees is really one for damages because substantive contract law, rather than a fee-shifting statute, governs the issue.
The Advisory Committee Notes for provision (d)(2), added to Rule 54 in 1993, indicate that the rule "does not ... apply to fees recoverable as an element of damages, as when sought under the terms of a contract." Here, Coram is seeking its fees based on the contract between it and Caremark. Coram supplies no reason why its contractual action for attorneys' fees is different from that contemplated by the Advisory Committee. Accordingly, I do not have jurisdiction under Rule 54(d)(2) to order Caremark to pay Coram its attorneys' fees. Cf. Cohn v. Taco Bell Corp., 1995 U.S. Dist. LEXIS 11791, No. 92 C 6852, 1995 WL 493453, *5 (N.D. Ill. Aug. 16, 1995) (Nordberg, J.) (finding that attorneys' fees sought under similar contractual language "must be claimed in the pleading, rather than merely presented by motion fourteen days after the judgment").
Coram argues that under Caremark's theory, attorneys' fees could never be awarded when a case is decided on a motion to dismiss. While Coram's conclusion may be correct, the response is a simple one. When seeking attorneys' fees pursuant to a contractual provision, the defendant should answer the complaint and file a counterclaim seeking attorneys' fees, and then move for judgment on the pleadings under Rule 12(c). In this way, the request for attorneys' fees is made in the pleadings and the court may properly rule on it. Because Coram did not follow this procedure here, its request for fees is denied.
Elaine E. Bucklo
United States District Judge
Dated: April 24, 1996
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