UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-50024
Summary Calendar
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GERALD HALL
Plaintiff-Appellant,
versus
RON BENTON, Individually and in His Official
Capacity as Police Officer for the City of Midland
Defendants,
RON BENTON, Individually and in His Official
Capacity as Police Officer for the City of Midland;
CHARLIE BLANKENSHIP, Agent, United States Secret Service;
BOBBY WELBORN, Individually and in His Official
Capacity as Police Officer for the City of Midland;
RON SARTOR; JESS THOMPSON; PEGGY THOMPSON;
CITY OF MIDLAND, TEXAS; FRATERNAL ORDER
OF POLICE, LODGE 11,
Defendants-Appellees.
LEONARD D. HENDON, JR.,
Plaintiff-Appellant,
versus
RON BENTON, Midland Police Department, et al.,
Defendants,
RON BENTON, Midland Police Department; CHARLIE BLANKENSHIP,
United States Secret Service; CITY OF MIDLAND, TEXAS; JESS
THOMPSON; PEGGY THOMPSON; BOBBY WELBORN, Midland Police
Department; RON SARTOR, Midland Police Department;
FRATERNAL ORDER OF POLICE, LODGE 11
RICHARD CZECH; DAMON SHUPP; DAVID WILKE,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
(No. 94-CV-129)
November 19, 1998
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Appellants Gerald Hall and Leonard D. Hendon, Jr. appeal the
district court’s denial of attorney’s fees to Appellants and the
imposition of costs against Appellants’ counsel for filing a
motion. We AFFIRM.
I.
In June 1993, Appellees Jess and Peggy Thompson, while
listening to their scanner, overheard a telephone conversation
between the Appellants, recorded it, and played it for the other
Appellees. Two weeks later, the Appellees informed the Appellants
of the recording and played part of it for them.
After unsuccessfully attempting to initiate criminal charges
against the Appellees, Appellants filed the present action,
presenting various claims against the Appellees. The only issue
the district court submitted to the jury was whether the Thompsons’
interception and disclosure of the conversation was a violation of
18 U.S.C. § 2511(1)(a) and (d). The jury returned a verdict in
favor of the Appellants; however, the district court refused to
award damages, finding the violations to be de minimis. The
*
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that this opinion should not be published and is not precedent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.
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district court also refused to award attorney’s fees to the
Appellants.
II.
A.
Under 18 U.S.C. § 2520 (b)(3), a party establishing an
interception of wire communication may recover “a reasonable
attorney’s fee and other litigation costs reasonably incurred”.
Appellants assert that, because they prevailed on a significant
issue, the district court erred in refusing to award attorney’s
fees. We review that denial for an abuse of discretion. Hidden
Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1052 (5th Cir. 1998).
In Hidden Oaks, our court affirmed the denial of attorney’s
fees under 42 U.S.C. § 1988, where the prevailing party was awarded
only nominal damages. Id. at 1052-53. Our court stated that, “in
determining the reasonableness of a fee award, courts must consider
‘the degree of the plaintiff’s overall success,’ recognizing that
often a plaintiff who ‘seeks compensatory damages but receives no
more than nominal damages’ will be the kind of prevailing party
that merits no attorney’s fee at all”. Id. at 1052, quoting Farrar
v. Hobby, 506 U.S. 103, 114-15 (1992). Here, the Appellants were
not awarded any damages. Thus, under the reasoning of Hidden Oaks,
the district court did not abuse its discretion in denying
attorney’s fees.
B.
Appellants also challenge the imposition of costs on Gerald
Fugit, their counsel. After Fugit moved for sanctions against
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Terry Rhoads, an attorney representing some of the Appellees, the
district court concluded that both the filing and pursuit of the
motion was “unjustified” and assessed Rhoads’ expenses against
Fugit. The district court based its order on FED. R. CIV. P.
37(a)(4)(B), which states that, when a discovery motion is denied,
the district court shall
require the moving party or the attorney
filing the motion or both of them to pay to
the party or deponent who opposed the motion
the reasonable expenses incurred in opposing
the motion, including attorney’s fees, unless
the court finds that the making of the motion
was substantially justified or that other
circumstances make an award of expenses
unjust.
First, although the notice of appeal under FED. RULE APP. PRO.
3(c) should have designated the costs order as one of the items
appealed from, we nevertheless have jurisdiction as to this issue.
See Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988)
(holding that FED. R. APP. PRO. 3 is jurisdictional in nature). In
United States v. Rochester, 898 F.2d 971, 976 n.1 (5th Cir. 1990),
our court stated that “[f]ailure to properly designate the order
appealed from ... may be cured by an indication of intent in the
briefs or otherwise”. See also United States v. Knowles, 29 F.3d
947, 950 (5th Cir. 1994) (finding jurisdiction over appeal from
order not specified in notice of appeal where defendant
demonstrated intent to appeal the order in his briefs); Turnbull v.
United States, 929 F.2d 173, 177-78 (5th Cir. 1991) (finding
jurisdiction where intent to appeal could be “fairly inferred” and
there was no prejudice to other party). Again, the notice of
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appeal did not list the order imposing costs on Fugit; but, the
Appellants’ brief discussed this issue, indicating an intent to
appeal the order. Further, the Appellees do not assert that they
were prejudiced by the omission; and they were able to fully
respond in their brief.
In reviewing the district court’s order, we find no abuse of
discretion. See Guidry v. Continental Oil Co., 640 F.2d 523, 533
(5th Cir. 1981) (finding that district courts have “broad
discretion” in imposing sanctions under Rule 37).
III.
Accordingly, the denial of attorney’s fees to the Appellants
and the imposition of certain costs against their counsel are
AFFIRMED.
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