UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 98-10127
Summary Calendar
TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS,
f/k/a TEXAS HOUSING AGENCY,
Plaintiff-Appellant
VERSUS
VEREX ASSURANCE, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(4:89-CV-515-4)
September 11, 1998
Before DAVIS, DUHÉ and PARKER, Circuit Judges.
PER CURIAM:*
The Texas Department of Housing and Community Affairs, f/k/a/
Texas Housing Agency (“THA”) sued Verex Assurance, Inc., (“Verex”)
claiming coverage of three defaulted loans. The district court
entered a take nothing judgment with respect to all three loans.
This Court affirmed the judgment with respect to two loans and
reversed and remanded with respect to the third (“Abbott”) loan.
On remand the district court entered judgment in favor of THA on
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
the Abbott loan, leaving the amount of attorney’s fees to be
determined on motion by THA under Fed. R. Civ. P. 54 (d)(2).
In the Northern District of Texas local rules require that all
opposed motions be “accompanied by a brief setting forth the
movant’s contentions of fact and law ....” U.S. Dist. Ct. Rules
N.D. Tex., L.R. 7.1(d).2 THA filed a motion for attorney’s fees
incurred in the prosecution of its claim on the Abbott loan, which
was not accompanied by a brief as required by Local Rule 7.1(d).
Hence, the district court entered an order unfiling THA’s motion
for attorney’s fees. THA filed a motion to extend time in which to
file a motion and supporting brief for attorney’s fees. The
district court, apparently finding no excusable neglect, denied the
motion for an extension of time. THA filed a motion to reconsider,
which was also denied. THA appeals.
THA argues that the district court’s insistence that a brief
be filed in support of the motion for attorney’s fees was
misplaced, because the final judgment on the Abbott loan had
already determined THA’s right to attorney’s fees, and the only
issue remaining was the factual determination of what portion of
THA’s attorney’s fees were attributable to the claim based on the
Abbott loan. Therefore, THA argues that there were no issues of
law to be briefed, and a brief in support of the motion was not
necessary. Under such circumstances, THA argues that the district
court’s strict adherence to local rule elevated form over substance
2
Local Rule 7.1(d) has since been amended to provide that “[a]n
opposed motion must be accompanied by a brief that sets forth the moving
party’s contentions of fact and/or law and argument and authorities ....”
2
and deprived THA of its substantive right to attorney’s fees. In
the alternative, THA argues that its failure to comply with Local
Rule 7.1(d) was due to excusable neglect, and therefore, its motion
for an extension of time to file a compliant motion for fees or its
subsequent motion for reconsideration should have been granted.
This Court reviews all the district court rulings challenged
by THA for an abuse of discretion. Victor F. v. Pasadena
Independent School Dist., 793 F.2d 633, 635 (5th Cir.
1986)(district court application of local rules in disposing of
motions reviewed for abuse of discretion); United States v. Clark,
51 F.3d 42, 43 n. 5 (5th Cir. 1995)(district court finding of no
excusable neglect reviewed for abuse of discretion); Latham v.
Wells Fargo Bank, N.A., 987 F.2d 1199, 1203 (5th Cir.
1993)(district court denial of motion for reconsideration reviewed
for abuse of discretion).
The district court’s post-remand opinion and final judgment on
THA’s claim under the Abbott loan did determine the merits of THA’s
claim for attorney’s fees.3 Hence, there was nothing more left to
be determined on THA’s Rule 54 motion for attorney’s fees, save the
amount of those fees. However, contrary to THA’s argument, there
were contentions of law and fact, which necessitated a supporting
3
The district court’s Post-Remand Opinion Regarding Abbott Loan reads
in pertinent part that “[i]n accordance with Texas law, Plaintiff is
entitled to an award of .... attorney’s fees regarding that claim [on the
Abbott loan]. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon
1986)(providing for reasonable attorney’s fees in suits based upon an oral
or written contract) .... The amount of recoverable attorney’s fees will
be determined in the manner set forth in Federal Rule of Civil Procedure
54(d)(2).” (emphasis added).
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brief under Local Rule 7.1(d). Principally, THA did not indicate
to the district court how it should apportion the fees incurred by
THA between the two unsuccessful claims and the claim on the Abbott
loan. The motion itself only asked the district court to determine
the amount of those fees incurred by THA (ostensibly $136,739.50 in
fees and $10,614.05 in court costs) which were attributable to
THA’s claim on the Abbott Loan. THA should have filed a supporting
brief suggesting a method of apportionment, but THA seemed content
to accept whatever method the district court chose. However, it is
not the district court’s responsibility to devise a method of
apportionment which is consistent with the Texas Civil Practice and
Remedies Code. Rather, that is THA’s responsibility, and the very
reason why a supporting brief was necessary. Therefore, we
conclude that the district court did not abuse its discretion by
unfiling THA’s motion for attorney’s fees for lack of a supporting
brief in compliance with Local Rule 7.1(d).
Likewise, the district court did not abuse its discretion by
refusing to allow THA an extension of time to refile an appropriate
motion and supporting brief. Under the Federal Rules of Civil
Procedure:
[w]hen .... an act is required or allowed to be done at
or within a specified time, the court for cause shown may
at any time in its discretion .... upon motion made after
the expiration of the specified period permit the act to
be done where the failure to act was the result of
excusable neglect ....
Fed. R. Civ. P. 6(b)(emphasis added). The Supreme Court has noted
that “inadvertance, ignorance of the rules, or mistakes construing
the rules do not usually constitute ‘excusable’ neglect ....”
4
Pioneer Inv. Services v. Brunswick Associates, 507 U.S. 380, 392,
113 S. Ct. 1489, 1496, 123 L. Ed. 2d 74 (1993). Nevertheless,
“‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic
concept’ and is not limited strictly to omissions caused by
circumstances beyond the control of the movant.” Id. The
determination of “what sorts of neglect will be considered
‘excusable’ .... is at bottom an equitable one, taking account of
all relevant circumstances surrounding the party’s ommission.”
Pioneer, 507 U.S. at 395, 113 S. Ct. at 1498.
It is clear that THA knew of the requirements of Local Rule
7.1(d) and chose not to comply on the theory that it was not
necessary. That was not neglect, but a calculated choice made upon
a misunderstanding of the requirements of the rule. On these facts
we conclude that the district court did not abuse its discretion in
denying THA’s motion for an extension of time and its subsequent
motion to reconsider. We therefore affirm.
AFFIRMED.
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