# Brown v. General Motors Corp.

> Court of Appeals for the Second Circuit · November 4, 1983 · 722 F.2d 1009

URL: https://www.frixlaw.com/law-library/cases/8918082

## Case

- **Full name:** Samuel L. BROWN, Sr. v. GENERAL MOTORS CORPORATION, CHEVROLET DIVISION, Tonawanda and Chevrolet Division, Buffalo
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** November 4, 1983
- **Citations:** 722 F.2d 1009; 33 Fair Empl. Prac. Cas. (BNA) 417; 32 Empl. Prac. Dec. (CCH) 33,931; 1983 U.S. App. LEXIS 15530
- **Precedential status:** Published
- **Opinion:** Concurrence by Oakes
- **Judges:** Cardamone, Oakes, Winter
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8918082

## Opinion text

OAKES, Circuit Judge
(concurring):
I would not reach the issue of the scope of the release under either New York or federal law. 1 I note that the district court’s *1013 order of dismissal specifically provided that the action was to be dismissed “without costs.” The dismissal, of course, was part of the consideration received from Brown for the $5,000, and in my view it is therefore proper to look to the dismissal itself to clarify what I feel is uncertainty or ambiguity as to the scope of the release. I believe that the denial of costs in the dismissal order is sufficient to uphold the district court’s ultimate conclusion that the settlement covered the issue of attorney’s fees. Although attorney’s fees certainly differ from other “costs,” Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 639 (6th Cir.1979), cert. denied, 447 U.S. 911 , 100 S.Ct. 2999 , 64 L.Ed.2d 862 (1980), the Act allows a reasonable attorney’s fee “as part of the costs." 42 U.S.C. § 1988 ; Hutto v. Finney, 437 U.S. 678, 695 , 98 S.Ct. 2565, 2576 , 57 L.Ed.2d 522 (1978).
In any event, I would add, Davis’s request for fees is untimely. The district court’s order of dismissal provided that the case could be reopened “upon good cause shown within 60 days ... if settlement is not consummated.” Davis was aware that a settlement agreement had been reached, and I believe that however his claim might have been resolved had he applied for fees within sixty days from the date of the order, his application of January 5, 1982, some eighty-three days after the order of dismissal, is untimely.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8918082. Public record. Not legal advice.