IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20219
Summary Calendar
WILLIAM L ROSE; ET AL,
Plaintiffs,
WILLIAM L ROSE; ANNETTE ROSE; MARK GABRO,
Individually and on behalf of all others
similarly situated; CATHY GABRO, Individually
and on behalf of all others similarly situated,
Plaintiffs-Counter
Defendants- Appellants,
v.
FIRST COLONY COMMUNITY SERVICES
ASSOCIATION, INC; ET AL,
Defendants,
SUGARLAND PROPERTIES INC,
Defendant-Counter
Claimant–Appellee,
v.
PERCY L ISGITT,
Defendant-Appellant.
WILLIAM L ROSE; ANNETTE ROSE; MARK GABRO;
CATHY GABRO, Individually and on behalf
of all others similarly situated,
Plaintiffs - Appellants,
v.
FIRST COLONY COMMUNITY SERVICES
ASSOCIATION INC; ET AL,
Defendants,
SUGARLAND PROPERTIES INC.,
Defendant - Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-97-CV-2097)
October 22, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:*
William Rose, Annette Rose, Mark Gabro and Cathy Gabro appeal
the district court’s award of sanctions for filing a motion for
protective order. Because we find that the district court did not
follow the requirements of Fed.R.Civ.P. 37(a)(4)(B), and because it
appears that incorrect individuals were named in the sanctions
order, we reverse and remand.
The sanctions resulted from the filing of a motion for
protective order. After the court had decided the underlying
dispute in favor of First Colony, First Colony sought to take a
post-judgment deposition regarding its bill of costs. The
plaintiffs, who included William Rose, Annette Rose, Woodrow W.
Miller, Michelle Speetzen and William J. Russell, filed a motion
for a protective order staying the deposition. First Colony filed
a response brief, including a request for sanctions. The district
court denied the motion and sanctioned the plaintiffs $500.
Fed.R.Civ.P. 26(a), which governs motions for protective
orders, makes Rule 37(a)(4) applicable regarding the award of
expenses incurred in relation to such motions. See Fed.R.Civ.P.
*
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this opinion should not be published and is not precedent except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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26(a). When a court denies a motion for protective order, the Rule
calls for an award of the opposing party’s expenses unless the
motion was substantially justified or unless sanctions would be
otherwise unfair.
Before expenses are awarded, however, the party to be
sanctioned must have an opportunity to be heard. Rule 37(a)(4)(B)
states:
If the motion is denied, the court . . . shall, after
affording an opportunity to be heard, 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.
Fed.R.Civ.P. 37(a)(4)(B) (emphasis added).
An oral hearing is not required. The Advisory Committee Notes
state that the court may consider awards of expenses either on
written submissions or in an oral hearing. See Fed.R.Civ.P. 37(a)
advisory committee’s note (1993). In this case, while the district
court had ample authority to award expenses, it should have done so
only after allowing the parties to file papers or have a hearing.
Further, the sanctioning order appears to name two non-
parties. Almost a year before the plaintiffs filed the motion at
issue, Mark Gabro and Cathy Gabro were dismissed with prejudice
from the action, and Miller, Speetzen and Russell were added as
plaintiffs. The sanctions order, which was prepared by the
defendants, had an incorrect caption and named the Gabros rather
than Miller, Speetzen and Russell as plaintiffs to be sanctioned.
The district court probably simply did not notice that the wrong
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plaintiffs were named. In any case, it would have been an abuse of
discretion for the district court to sanction parties for a
frivolous filing when they had long since left the litigation
arena.
We remand to the district court for consideration of an award
of expenses compliant with Fed.R.Civ.P. 37(a)(4)(B). REVERSED AND
REMANDED.
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