On October 19, 2018, Plaintiff filed a motion in both cases to enforce the settlement agreement, alleging Defendant failed to meet its payment obligations. (LFOW I Mot. for Settlement Agreement Enforcement, Dkt. No. 106 (“Pl.'s Mot.”); LFOW II Mot. for Settlement Agreement Enforcement, Dkt. No. 27).[2] On February 12, 2019, the Honorable Carol B. Amon referred the motion to the undersigned for a report and recommendation. (Order Referring Mot. dated Feb. 12, 2019). Although Defendant has since paid Plaintiff the total sum owed under the Settlement Agreement, Plaintiff is seeking costs and attorney’s fees for the work done as part of enforcing the Settlement Agreement. For the reasons described below, the Court respectfully recommends that Plaintiff’s request for costs and fees be denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

LFOW, a Pennsylvania limited liability company, is the developer and owner of “live person” software (“LFOW Software”), which “allows a company to display a video of a ‘walking’ and ‘talking’ personal host who introduces a website to an online visitor.” (LFOW I Compl. ¶¶ 1, 10-11; LFOW II Compl. ¶¶ 1, 9-10). According to the LFOW I and LFOW II Complaints, Defendants own, operate, and control the website www.bfadvance.com. (LFOW I Compl. ¶ 19; LFOW II Compl. ¶ 18). Plaintiff claims Defendants violated the Copyright Act by using and distributing the LFOW software on www.bfadvance.com without permission. (LFOW I Compl. ¶ 22; LFOW II Compl. ¶ 21).

*2 On January 31, 2018, the parties entered into a confidential settlement agreement. (See Settlement Agreement, attached as Ex. C to Pl.'s Suppl. Mem. in Supp. of Mot. (“Pl.'s Mem. II”), Dkt. No. 111 (“Settlement Agreement”)). Under the Settlement Agreement, Defendants “were obligated to, inter alia, prosecute a related third-party insurance action against Sentinel Insurance Company (‘Sentinel’) ... and immediately pay over a portion of any verdict or settlement in the Sentinel Action ... to Plaintiff.” (Pl.'s Mem. of Law in Supp. of Mot., attached to Pl.'s Mot., Dkt. No. 106 (“Pl.'s Mem. I”) at 1-2; see also Settlement Agreement ¶ 1(c)).

The Settlement Agreement also includes two provisions pertaining to attorney’s fees. (Id. ¶¶ 12, 14). Paragraph 12, titled “Attorneys' Fees And Costs For The Actions,” provides:

(Id. ¶ 12). Paragraph 14, titled “Subsequent Actions,” also discusses attorney’s fees:

(Id. ¶ 14).

In August 2018, by examining the public docket, Plaintiff discovered that the action against Sentinel, Case No. 16-CV-5931 (“Sentinel Action”), had been settled. (Pl.'s Mem. I at 2). On August 15 and August 29, 2018, Plaintiff’s counsel sent emails to Defendants' counsel asking for information about the settlement but received no response. (Id.). Defendants' counsel claims to have never received these emails and has no record of them. (Defs.' Mem. of Law in Opp'n, Dkt. No. 110 (“Defs.' Opp'n I”) at 2).[3] On October 5, 2018, Plaintiff served the Defendants with “a formal notice of breach, demand for cooperation, and demand to hold the applicable Sentinel settlement proceeds in trust in accordance with the LFOW BF Settlement Agreement.” (Pl.'s Mem. I at 2). According to Defendants' counsel, this October 5, 2018 correspondence was “[t]he first notice BFA received of the missed payment and alleged breach[.]” (Defs.' Opp'n I at 2). After the formal notice, there was some correspondence between the parties, but the disputed issues, including the payment from the Sentinel Action settlement to Plaintiff, were not resolved. (Id. at 2-3).

On October 19, 2018, Plaintiff filed a motion for enforcement of the settlement agreement, (Pl.'s Mot.), claiming Defendants breached the agreement by failing to pay Plaintiff the required funds from the Sentinel Action, (Pl.'s Mem. I at 2). Plaintiff also sought to recover attorney’s fees and costs. (Id. at 3). In Defendants' response, they indicated they had paid Plaintiff the morning the motion was filed and requested the Court deny Plaintiff’s motion as moot. (Letter dated Oct. 22, 2018, Dkt. No. 107 at 1; see also LFOW II Tr. of Hr'g Held on Jan. 16, 2019, Dkt. No. 28 (“Jan. 16 Tr.”) at 5:24-6:1) (indicating Defendants made a $6,000 payment under the settlement agreement to Plaintiff’s counsel two hours before Plaintiff filed its motion to enforce)). Defendants explained that they had settled the Sentinel Action on July 16, 2018, but had not immediately dispersed the proceeds to Plaintiff under the Settlement Agreement due to an oversight. (Decl. of Joel Rothman, attached as Ex. 1 to Defs.' Opp'n I, Dkt. No. 110 (“Rothman Decl.”) ¶¶ 4-6). Plaintiff argued the motion was not moot because Defendants' breach of the Settlement Agreement was intentional and that it should still be awarded attorney’s fees and costs. (Pl.'s Letter dated Oct. 23, 2018, Dkt. No. 108 at 2).

*3 The Court held a motion hearing on January 16, 2019. (Min. Entry dated Jan. 16, 2017). Plaintiff confirmed that it did receive the full amount owed under the Agreement, but that it was “seeking to recover its reasonable attorney’s fees because it was forced to enforce the settlement and incur costs[.]” (Jan. 16 Tr. at 3:5-8, 3:11-20). At the time the motion was filed, Plaintiff’s attorney’s fees totaled approximately $2,500, (id. at 3:25-4:1); however, after subsequent filings and communications, the total has risen, according to Plaintiff, to approximately $4,200, (id. at 3:23-24).

The Court gave each party three weeks after the hearing to submit their arguments pertaining to attorney’s fees in writing and one week after that to respond to each other’s submissions. (Min. Entry dated Jan. 16, 2019). Both parties did so. (See Defs.' Opp'n I; Pl.s' Mem. II; Pl.'s Mem. in Supp., Dkt. No. 112 (“Pl.'s Mem. III”); Defs.' Mem. in Opp'n, Dkt. No. 113 (“Defs.' Opp'n II”)).[4] Nowhere in any of these documents did Plaintiff’s attorneys submit contemporaneous billing records or invoices, or provide an explanation of their fees and costs calculation.[5]

DISCUSSION

I. Entitlement to Attorney’s Fees Under the Settlement Agreement

The Court must decide which provision in the Settlement Agreement, paragraph 12 or paragraph 14, applies to a request for attorney’s fees for settlement enforcement activity that took place with little to no Court supervision or intervention.

“Under the law of New York, a settlement agreement in writing between parties represented by counsel is binding and, essentially, a contract ... subject to the rules governing the construction of contracts.” Bank of N.Y. v. Amoco Oil Co., 35 F.3d 643, 661 (2d Cir. 1994)(quotations omitted).[6] In New York, “ ‘a written contract is to be interpreted so as to give effect to the intention of the parties as expressed in the unequivocal language they have employed.’ ” In re Stock Exchs. Options Trading Antitrust Litig., No. 99-CV-962, 2005 WL 1635158, at *6 (S.D.N.Y. July 8, 2005) (quoting Terwilliger v. Terwilliger, 206 F.3d 240, 245 (2d Cir. 2000)). “ ‘[C]ontractual provisions for the payment of attorneys' fees [are] strictly construed, and general language will not be sufficient to warrant an award for a type of expense that is not customarily reimbursed.’ ” Kauhsen v. Aventura Motors, Inc., No. 09-CV-4114, 2012 WL 2789647, at *4 (E.D.N.Y. Jul. 9, 2012) (quoting F.H. Krear & Co. v. Nineteen Named Trs., 810 F.2d 1250, 1263 (2d Cir. 1987)).

*4 Paragraph 12 provided that each party will bear its own costs and attorney’s fees that are “incurred in or arising from or in any way connected with the Actions.” (Settlement Agreement ¶ 12 (emphasis added)). The Settlement Agreement defines “the Actions” as LFOW Iand LFOW II. (Settlement Agreement at 1 (“Plaintiffs filed Complaints in the United States District Court for the Eastern District of New York, Case No. 1:15-CV-7415 and 1:17-CV-1171 (collectively, the ‘Actions’)[.]”)). Plaintiff’s motion to enforce the Settlement Agreement arose out of and was connected with the Actions—it is based on the litigation in LFOW I and II, its settlement of both cases, and Defendants' failure to pay. The motion was filed in both LFOW I and II. As such, a request for fees on the basis of such a motion falls within Paragraph 12, which requires that each party bear its own fees and costs.

Plaintiff argues that Paragraph 12 only refers to pre-settlement issues. (Pl.'s Mem. III at 4). There is nothing in Paragraph 12 to suggest that its attorney’s fees exclusion turns on whether there has been a settlement or not. The exclusion in Paragraph 12 is dependent on whether the activity took place within the Actions or not. And Plaintiff provides no argument or basis to conclude that a motion to enforce a settlement reached in the Actions and filed in the Actions should not be considered as part and parcel of these cases.

Plaintiff instead contends that Paragraph 14 of the Settlement Agreement provides the basis to award it attorney’s fees. This argument is without merit. For one thing, Paragraph 14 is labeled “Subsequent Actions.” Given that the contract defines “the Actions” as this current litigation between the parties, i.e. LFOW I and II, the only plausible reading of Paragraph 14 is that it applies to additional separate litigation between the parties, outside of LFOW I and II. See Int'l Multifoods Corp. v. Commercial Union Ins. Co., 309 F.3d 76, 85 (2d Cir. 2002)(“Captions are relevant to contract interpretation.”).

Paragraph 14 does provide that “[i]n the event of any dispute arising out of or relating to the performance, construction or interpretation of this Agreement,” attorney’s fees may be recovered. (Settlement Agreement ¶ 14). That is, it provides that fees in a dispute around the Settlement Agreement may be recovered. At first glance, this appears to be in tension with Paragraph 12, which, as discussed, would not permit a fees recovery for activity in the Actions, including around a settlement agreement dispute. However, the only way to reconcile Paragraphs 12 and 14, without rendering either nugatory, is to read Paragraph 12, i.e., the exclusion of fees, as pertaining to activity in either LFOW I and II, and Paragraph 14, which permits recovery, as applying to fees incurred in a different, later lawsuit. Had LFOW been forced to file an additional lawsuit in this Court or another, to enforce the agreement, Paragraph 14 would apply and permit the recovery of fees. But if it seeks relief in LFOW I and II, the original actions that led to the settlement, Paragraph 12 applies, and fees are not recoverable. This may be an odd way to decide when attorney’s fees are recoverable, but it makes sense. Since the right to recover attorney’s fees in Paragraph 14 is open to the prevailing party, one side can avoid the possibility of being liable for fees to the other side by choosing to raise its dispute in the existing Actions, not in a separate and new case. As another example, Plaintiff could be forced to file another lawsuit in a different forum should Defendants breach their obligation not to distribute or use the Plaintiff’s copyrighted source code outside of the Eastern District of New York. (See Settlement Agreement ¶ 5). And in such a situation, the parties may have contemplated that fees should be recoverable. But, in any event, this is how the parties drafted the Settlement Agreement, and it is the only way to harmonize and give effect to both Paragraphs 12 and 14. See India.com, Inc. v. Dalal, 412 F.3d 315, 323 (2d Cir. 2005) (“[U]nder New York law, effect and meaning must be given to every term of the contract, and reasonable effort must be made to harmonize all of its terms.”) (quotations and alterations omitted); Golden Bay Enters., Inc. v. Walmart Stores, Inc., No. 00-CV-6977, 2008 WL 4453195, at *3 (E.D.N.Y. Sept. 30, 2008) (“Interpretations of contracts that make provisions nugatory are disfavored.”); Huff v. Cruz Contracting Corp., 643 F. Supp. 2d 344, 361 (S.D.N.Y. 2009) (“[F]amiliar canons of contractual interpretation include effectuating the plain meaning of the terms of the contract, considering the terms of the contract with an eye toward the entire document so as not to render any provision superfluous or nugatory[.]”).[7]

*5 Even if Paragraph 12 were not an obstacle to recovery of attorney’s fees, there is another independent barrier to Plaintiff’s recovery. There is no ambiguity in Paragraph 14 about who can obtain attorney’s fees—a “prevailing Party.” (See Settlement Agreement ¶ 14 (“[T]he prevailing Party shall be entitled to recover its reasonable attorney[’s] fees and costs[.]”) (emphasis added)).

Plaintiff is not a prevailing party under the Settlement Agreement. “ ‘[W]hen words ... having a definite legal meaning are knowingly used in a written instrument, the parties thereto will be presumed to have intended such words ... to have their proper legal meaning ... in the absence of any contrary intention appearing in the instrument.’ ” Arbordale Hedge Invs., Inc. v. Clinton Grp., Inc., No. 99-CV-4452, 1999 WL 1000939, at *2 (S.D.N.Y. Nov. 4, 1999) (quoting Malbone Garage, Inc. v. Minkin, 272 A.D. 109, 113 (2d Dep't 1947)). Where a contract refers to “prevailing party without explanation or qualification,” it is appropriate to utilize the meaning of the term under the law governing the agreement. See id. And under New York law, “the prevailing party is the party that ‘prevail[s] with respect to the central relief sought.’ ” Id.(quoting Nestor v. McDowell, 81 N.Y.2d 410, 415-16 (1993)). There must be a judgment, one which is “substantially favorable” to one side. Walentas v. Johnes, 683 N.Y.S.2d 56, 59 (1st Dep't 1999). That is, “to prevail,” means “[t]o obtain the relief sought in an action; to win a lawsuit.” Prevail, Black’s Law Dictionary 1380 (10th ed. 2014) (emphasis added); id. at 1298 (defining “prevailing party” as “[a] party in whose favor a judgment is rendered”) (emphasis added).[8]

Plaintiff has not won a lawsuit, nor has a judgment been rendered in its favor. Defendants paid the amount due before Plaintiff filed the motion for settlement enforcement or, in any event, before the Court could make a decision on the merits of the motion. The Court never reached the merits of any claim that the Defendants breached the Settlement Agreement. Filing a motion—or asserting a claim—that forces action on the part of the counterparty does not transform Plaintiff into a “prevailing party” in the litigation. (And to the extent that it is pertinent, nor is Plaintiff the prevailing party in the underlying actions; both were resolved in a settlement without admissions of wrongdoing). Because Plaintiff is not a prevailing party, it is not entitled to fees under Paragraph 14 of the Settlement Agreement. See, e.g.,DKR Mortg. Asset Tr. 1 v. Rivera, 14 N.Y.S.3d 414, 416 (2d Dep't 2015) (“[T]here was no substantive determination on the merits of either the plaintiff’s cause of action or Rivera’s counterclaims and defenses. Accordingly, Rivera was not a prevailing party[.]”); Chainani v. Lucchino, 94 A.D.3d 1492, 1494 (4th Dep't 2012) (holding plaintiffs are not “prevailing part[ies]” and not entitled to attorney’s fees because, they “did not obtain the full measure of injunctive relief they sought, did not receive an award of damages, and, importantly, did not obtain a determination that defendants breached the 2000 agreement.”); Sparks Pita Store # 1, LLC v. Pita Pit, Inc., No. 08-CV-512, 2010 WL 173901, at *2 (D. Nev. Jan. 14, 2010) (“The central relief sought in this dispute is a determination of whether Defendant breached the franchise agreements.... [T]he court’s order did not reach the merits of the dispute. As such, the court finds that Defendant is not the prevailing party under New York law, and the court will deny Defendant’s request for attorneys' fees.”).

II. Absence of Contemporaneous Time Records

*6 Aside from issues regarding interpretation of the Settlement Agreement, the Court cannot award attorney’s fees because Plaintiff has failed to submit any time records. To recover fees, attorneys must submit contemporaneous time records that specify “the date, the hours expended, and the nature of the work done.” N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983); Scott v. City of N.Y., 626 F.3d 130, 133 (2d Cir. 2010) (“Carey sets out unequivocally that absent unusual circumstances attorneys are required to submit contemporaneous records with their fee applications.... [A]ny possible exceptions are minimal and limited in scope.”).

Plaintiff has not provided the Court with any contemporaneous time records for its request for attorney’s fees. The Court cannot perform its proper review function—e.g., excluding duplicate entries, reducing unnecessary time, and ensuring hours were recorded contemporaneously—without the actual billing records. See Bogosian v. All Am. Concessions, No. 06-CV-1633, 2012 WL 1821406, at *3 (E.D.N.Y. May 18, 2012) (“[D]eterminations of reasonable attorneys' fees ... require a review of reasonably detailed contemporaneous time records, as contemplated by [Carey, 711 F.2d at 1148].”). Moreover, Defendants cannot raise objections regarding the time spent and the nature of the work. See Pastre v. Weber, 800 F. Supp. 1120, 1124 (S.D.N.Y. 1991) (“Noting that such sparse documentation made review of the application and consideration of objections thereto exceedingly difficult, the Court of Appeals established the requirement ... that fee applicants document their applications with contemporaneous time records[.]”) (emphasis added) (citing Carey, 711 F.2d at 1147-48).

Plaintiff appears to be under the impression that the Court indicated a separate briefing schedule would be forthcoming as to evidence of attorney’s fees and costs. (Pl.'s Mem. II at 8 (“During the hearing, the Court indicated that the presentation of evidence relating to the reasonableness and amount of any applicable award of fees, costs and other relief will occur pursuant to a separate briefing schedule.”) (citing Jan. 16 Tr. at 9:24-10:3)). The Court never suggested any separate briefing schedule. The Court discussed submitting attorney’s fees application documentation in the context of what Plaintiff could include in its briefs within the briefing schedule set out at the hearing, and did not indicate it would create a separate schedule for an independent attorney’s fees application. (See id. 17:22-18:1 (“[I] will give each side three weeks to submit whatever legal argument and/or declarations in support of their respective positions. And I'll give you each one week to respond to the other side’s submissions, and then we'll just decide.”)).

Plaintiff’s deficient fee application is a separate reason the motion should be denied. See, e.g., U.S. ex rel. Karlin v. Noble Jewelry Holdings Ltd., No. 08-CV-7826, 2012 WL 1228199, at *4 (S.D.N.Y. Apr. 9, 2012) (report and recommendation) (denying fee application because attorney “failed to submit any contemporaneous records when he filed his motion.”); Genn v. New Haven Bd. of Educ., No. 12-CV-704, 2017 WL 2079648, at *2 (D. Conn. May 15, 2017) (“ ‘Carey establishes a strict rule from which attorneys may deviate only in the rarest of cases.’ Plaintiff counsel has deviated from Carey ... and has not provided any indication that hers is ‘the rarest of cases’ meriting such deviation.”) (citation omitted) (quoting Scott, 626 F.3d at 133, and denying fee application based on attorney’s “work log”).[9]

CONCLUSION

*7 For the reasons stated above, the Court respectfully recommends that Plaintiff’s motion for settlement enforcement, attorney’s fees, costs, and interest, be denied. Although the foregoing analysis applies to LFOW I, No. 15-CV-7415, the Court makes the same recommendation for LFOW II, No. 17-CV-1171, because the motion in that case pertains to the same settlement agreement.

Any objections to the Report and Recommendation above must be filed with the Clerk of the Court within 14 days of service of this report. Failure to file objections within the specified time waives the right to appeal any judgment or order entered by the District Court in reliance on this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008) (“[F]ailure to object timely to a magistrate[ ] [judge’s] report operates as a waiver of any further judicial review of the magistrate[ ] [judge’s] decision.”).

SO ORDERED.