UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20994
SANDY G. TOLLETT,
Plaintiff-Appellee-Cross-Appellant,
versus
THE CITY OF KEMAH,
Defendant-Appellant-Cross-Appellee,
WILLIAM S. HELFAND,
Appellant-Cross-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
March 6, 2002
Before DAVIS, WIENER, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
For this second appeal in this action, the principal issue is
whether, on remand from the first appeal, the district judge
exceeded our mandate directing him to recalculate sanctions.
Following her unsuccessful trial on the merits, and prior to that
first appeal, plaintiff Sandy G. Tollett had been awarded sanctions
(attorney’s fees and all court costs) against not only the
defendant, the City of Kemah, Texas, but also two of its employees.
The sanctions arose out of a discovery dispute.
Tollett conceded in the first appeal, however, that those
sanctions were not supported by proof of reasonable fees and costs.
Therefore, our mandate for the first appeal, consistent with the
terms of the contested sanctions order, directed the district court
to assess reasonable fees and costs, pursuant to Federal Rule of
Civil Procedure 37 (failure to produce documents and to comply with
discovery order). Instead, on remand, pursuant to its inherent
power, the district court imposed sanctions and attorney’s fees
against the City and, instead of its two employees, against its
counsel, William S. Helfand. Those remand-actions followed the
district judge’s stating he was “insulted” and “angry” because the
original sanctions had been appealed.
In addition to the challenge by the City and its counsel to
the revised sanctions, Sandy G. Tollett contests the denial, on
remand, of a new trial.
That denial is AFFIRMED; the sanctions and attorney’s fees
awarded on remand, as well as the findings and conclusions in the
post-remand orders, are VACATED; and judgment is RENDERED, with the
original sanctions being recalculated in accordance with our
original mandate.
I.
Most unfortunately, what should have been a simple,
expeditious, and inexpensive undertaking on remand has been just
the opposite, to say the least. It goes without saying that our
2
mandate from the first opinion stands. Therefore, it is neither
necessary, much less appropriate, to question, or otherwise
reconsider, the merits of the underlying discovery dispute or the
correctness of either the original sanctions or our subsequent
first opinion and corresponding mandate. But, to unravel the
erroneous result on remand, as well as to understand why this
remand-chapter was unnecessary, requires revisiting and dissecting,
in considerable detail, the events leading up to, and following,
our mandate for the first appeal.
A.
Tollett was a full-time, non-paid city police officer.
Becoming pregnant, she left that position; on returning, she was
allegedly informed she would have to retrain and would be on
probationary status. As a result, she brought this action in
September 1996 against the City, claiming sex discrimination,
violative of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq., and violation of the Family and Medical Leave
Act, 29 U.S.C. § 2601, et seq.
Tollett made discovery requests in January 1997. Simply put,
the City’s position, as stated in the affidavit of its Secretary,
further discussed below, was that it “ha[d] no records to produce
of any employee or volunteer who [was], as described [earlier in
the affidavit], ‘similarly situated’ to Sandy Tollett”. (Emphasis
added.) That May, unsatisfied with the City’s responses concerning
3
police department personnel records, Tollett moved to compel. The
motion was granted that June.
That October, claiming the City had failed to comply with the
discovery order, Tollett moved, pursuant to Federal Rules of Civil
Procedure 11 and 37, for sanctions ($50,000) and attorney’s fees
($7,500). Tollett reasserted that motion during a pre-trial
hearing; the court took it under advisement.
During the March 1998 trial, the discovery dispute over the
existence of the records became hotly contested when one of
Tollett’s witnesses, deputy police chief Peter Munoz, acknowledged
the existence of some employment records. The district court
ordered that any records be produced in court the next day, and
announced that, if it was shown there had been any impropriety with
respect to them, it was “going to ask the FBI to go over there [to
the police department] and turn that office upside down and put
everybody in jail that belongs ... there”. The records were
produced the next day, the last day of testimony; and the court
engaged in extensive questioning about them.
A jury found for the City, with judgment entered on 20 March
1998. On 30 March, Tollett moved for a new trial pursuant to
Federal Rule of Civil Procedure 59 — not Rule 60, as discussed
infra.
Tollett asserted in the new trial motion: the City had
improperly withheld employment records; it and its counsel had lied
4
about the records’ existence; and, had they been properly produced,
the outcome of the trial would have been different. But, without
explanation, the district court denied the new trial motion that
May.
Earlier, however, in a 24 March order (four days after entry
of judgment and six days before the new trial motion was filed),
the district court had granted the sanctions motion. In the
sanctions order, it made the following findings and conclusions:
the City Secretary “knew that her statements in [her summary
judgment] affidavit [concerning the requested records] would
mislead the Court”; the Deputy Chief “knew the falsity and
deception of the City Secretary’s statement. Nevertheless, he
testified falsely concerning the whereabouts of the police
personnel records”; and “These perversions of the truth are serious
and require serious sanctions against the [two] individuals and the
City”. But, instead of imposing the requested extreme sanctions
and attorney’s fees, and in the light of its knowledge about, and
extensive participation in resolving, the discovery dispute, it
assessed $5,000 in attorney’s fees and “all court costs” against
the defendant City, as well as the two non-defendant employees
discussed in the sanctions order, City Secretary Kathy Pierce and
Deputy Chief Munoz.
5
The City moved the court to reconsider the award, asserting
there had been no proof to support the amount awarded. The motion
was denied without explanation.
Both sides appealed. The City did not challenge the
imposition of sanctions, only their amount. Nor did the two city
employees contest being included among those liable for the
sanctions. The City maintained, as it had in its motion to
reconsider, that Tollett had not submitted any evidence to support
her fees request; and stated that the district court had “failed to
articulate why it assessed the specific amount of $5,000.00 or what
proof existed to support that amount”.
In no respect did Tollett appeal the sanctions. Instead, she
challenged only the new trial denial.
That denial was affirmed. Tollett v. City of Kemah, No. 98-
20547, at 4 (5th Cir. 13 Sept. 1999) (unpublished) (Tollett-USCA).
Concerning the City’s challenge to the sanctions amount, we held:
“The City contends, and Tollett concedes, that the sanction imposed
by the [district] court is not supported by proof of the incurred
fees and expenses. It is necessary, therefore, to remand for a
redetermination and assessment of reasonable attorney’s fees and
costs under Rule 37”. Tollett-USCA, at 5 (emphasis added).
B.
On remand, the district court stated in a 15 October 1999
order: “[T]he Court is required to determine reasonable sanctions
6
for the conduct of the defendants [sic] and/or counsel [not named
in the original sanctions order] in failing to comply with [the]
discovery request ordered by the Court”. Approximately two months
later, at a 6 December hearing, the following colloquy ensued:
[COUNSEL FOR THE CITY]: As I’m sure this
Court is aware, the issue here today is solely
regarding the issue of the amount of
sanctions.
THE COURT: Well, I don’t know that that’s all
that it’s about, because what the Circuit
Court did is I believe they said that the
record was not sufficient for me to have
entered sanctions. They’re not saying
sanctions should not have been entered.
They’re saying I need to make a complete
record, it seems to me, and then determine
whether sanctions should be entered or not.
Because based on the way that I did it, the
Circuit Court reversed it, I believe. Maybe I
read that incorrectly, but I believe they’re
saying the record is insufficient to support
any amount of sanctions, because it seems to
me that they could have said, well, there is
some evidence to support some of this, not all
of this. Let’s redetermine what amount, if
any.
....
I do not intend to walk away from this,
because I’m insulted. I’m angry by the fact
that this case would go up on a simple $5,000
award that was designed to ameliorate Ms.
Tollett’s problem.
(Emphasis added). The district judge stated he “had hoped that
this would have gone away; ... [he] was disappointed that the
appeal was taken [by the City]”; and “it might be that the Court
ought to defy, if necessary, the Fifth Circuit and say I’m granting
a new trial and I’m going to retry this case”. (Emphasis added.)
7
The district court ordered an evidentiary hearing to
investigate the circumstances of the discovery requests and the
personnel records, and advised the City to retain new counsel,
opining that a conflict of interest existed between the City and
its counsel, William S. Helfand. A 14 January 2000 order: set the
hearing; stated who was to testify; prohibited Helfand and another
member of his firm from representing the City in the proceeding;
and stated the hearing was necessary “to determine whether
sanctions should be imposed and, if so, against whom”.
On 12 January, two days before the above-referenced order,
Tollett had filed an amended sanctions motion, again pursuant to
Rules 11 and 37, seeking $150,000 in sanctions and $75,000 in
attorney’s fees from the City, Helfand, and Helfand’s firm. The
motion also requested, pursuant to Rules 60(b)(2) and (3), a new
trial on the basis of claimed newly discovered evidence and fraud.
Over two days that March, the evidentiary hearing was held to
consider the amended sanctions request, but not that for a new
trial, the district court concluding the latter had been
“adequately addressed ... in the documents and papers”. That
October, pursuant to its inherent power, the court imposed against
the City and Helfand $50,000 in sanctions and $20,000 in attorney’s
fees.
Although the district court did not expressly deny Tollett’s
new trial motion in that October 2000 order and an accompanying
separate “FINAL JUDGMENT”, it stated in the former it was
8
“convinced ... [Tollett] cannot now, nor could she have ever
received a fair trial. This is so because the records of the city
of Kemah cannot be authenticated, having been purged by city
officials”. In short, there is no explicit district court ruling
on Tollett’s Rule 60(b)(2) and (3) new trial motion.
II.
The City, Helfand, and Tollett appeal. Accordingly, at issue
are: whether the sanctions exceeded our mandate; and whether a new
trial should have been granted.
A.
We review for abuse of discretion the imposition of sanctions,
whether pursuant to Rules 11 or 37 or the district court’s inherent
power. E.g., Toon v. Wackenhut Corr. Corp., 250 F.3d 950, 952 (5th
Cir. 2001) (sanctions imposed pursuant to court’s inherent power
reviewed for abuse of discretion); Mercury Air Group, Inc. v.
Mansour, 237 F.3d 542, 548 (5th Cir. 2001) (same for Rule 11
sanctions); FDIC v. Conner, 20 F.3d 1376, 1380 (5th Cir. 1994)
(same for Rule 37 sanctions). An abuse of discretion occurs where
the “ruling is based on an erroneous view of the law or on a
clearly erroneous assessment of the evidence”. Mansour, 237 F.3d
at 548 (internal quotation marks omitted).
1.
Helfand and the City contend that the district court’s
redetermination, on remand, of whether, and against whom, sanctions
9
should be imposed, exceeded our mandate (the law of the case).
They maintain the district court was limited to a redetermination
of the amount of sanctions, pursuant to Rule 37, to be assessed
against the City and, instead of Helfand, against the two city
employees.
a.
“Under the law of the case doctrine, an issue of law or fact
decided on appeal may not be reexamined either by the district
court on remand or by the appellate court on a subsequent appeal”.
United States v. Becerra, 155 F.3d 740, 752 (5th Cir. 1998)
(internal quotation marks omitted). This doctrine is “predicated
on the premise that there would be no end to a suit if every
obstinate litigant could, by repeated appeals, compel a court to
listen to criticisms on their opinions or speculate of chances from
changes in its members”. Id. (internal quotation marks omitted).
“A corollary of the law of [the] case doctrine” is the mandate
rule, which “provides that a lower court on remand must implement
both the letter and spirit of the [appellate court’s] mandate, and
may not disregard the explicit directives of that court”. Id. at
753 (internal quotation marks omitted; alteration in original;
emphasis added). In other words, a district court “is not free to
deviate from the appellate court’s mandate”. Id. (internal
quotation marks omitted). And, in implementing the mandate, the
district court should consult the reviewing court’s opinion “to
10
ascertain what was intended by [the] mandate”. In re Sanford Fork
& Tool Co., 160 U.S. 247, 256 (1895).
As a result, the district court “is without power to do
anything which is contrary to either the letter or spirit of the
mandate construed in the light of the opinion of [the] court
deciding the case”. Amer. Trucking Ass’ns, Inc. v. ICC, 669 F.2d
957, 960 (5th Cir. 1982) (internal quotation marks omitted;
alteration in original; emphasis added), cert. denied, 460 U.S.
1022 (1983). Again, it must “implement both the letter and the
spirit of the mandate, taking into account the appellate court’s
opinion and the circumstances it embraces”. United States v.
Kikumura, 947 F.2d 72, 76 (3d Cir. 1991) (internal quotation marks
omitted).
In imposing the original sanctions, the district court did not
state under what authority it was acting. As noted, they had been
requested pursuant to Rules 11 and 37. And, the sanctions order
contains findings related to both Rules. As discussed supra, it
also includes findings concerning the affidavit by one sanctioned
City employee and the trial testimony by the other. Those two
individuals’ being sanctioned, in addition to the City, does not
fall under either Rule. But, as noted, they did not contest the
sanctions on the first appeal.
As discussed infra, because the original sanctions’ genesis
was a discovery dispute, and because they were limited to
11
attorney’s fees and court costs, they were more akin to those
permitted by Rule 37. Compare FED. R. CIV. P. 11 (“Signing of
Pleadings, Motions, and Other Papers; Representations to Court;
Sanctions” (emphasis added)), especially subparts (c) (“Sanctions”)
& (d) (“Inapplicability to Discovery”), with FED. R. CIV. P. 37
(“Failure to Make Disclosure or Cooperate in Discovery;
Sanctions”), especially subparts (a)(4)(“Motion For Order
Compelling Disclosure or Discovery” — “Expenses and Sanctions”) &
(b)(2) (“Failure to Comply With Order” — “Sanctions by Court in
Which Action is Pending”). Moreover, for the first appeal, the
City asserted, and Tollett did not dispute, that the sanctions had
been imposed pursuant to Rule 37.
Accordingly, for that appeal, we held:
[T]he district court abused its discretion in
imposing sanctions. Under Rule 37 of the
Federal Rules of Civil Procedure, a party may
be liable for reasonable expenses including
attorney’s fees caused by the failure to
comply with a discovery order. The language
of Rule 37 provides that only the expenses and
fees caused by the failure to comply may be
assessed [against] the noncomplying party.
The district court sanctioned the City
“the sum of $5,000 in attorneys [sic] fees and
all court costs....” The City contends, and
Tollett concedes, that the sanction imposed by
the court is not supported by proof of the
incurred fees and expenses. It is necessary,
therefore, to remand for a redetermination and
assessment of reasonable attorney’s fees and
costs under Rule 37.
12
Tollett-USCA, at 4-5 (third alteration in original; internal
citations omitted; emphasis added). The separate mandate stated:
“the cause is remanded to the District Court for reconsideration
and assessment of sanctions”.
Tollett maintains the district court “correctly interpreted
this court’s ruling as setting aside its previous ruling and a
requirement that an evidentiary hearing be held to determine
liability, if any, for any of the parties subject to sanctions”.
This reading is totally at odds with our opinion.
Instead, it was clear from our opinion that the district court
was not to redetermine the type of sanctions, or whether, and
against whom, sanctions should be imposed. The opinion expressly
directed the district court only to determine the proper amount to
impose as Rule 37 sanctions (reasonable expenses, including
attorney’s fees). The opinion stated this was necessary because
the original award was not supported by any evidence of the
attorney’s fees and related other expenses incurred by Tollett.
There can be no dispute about that.
Tollett contends, however, that exceptions to the law of the
case doctrine prevent its application here. The “doctrine ... is
not inviolate.... [A] prior decision of this court will be
followed without re-examination ... unless (i) the evidence on a
subsequent trial was substantially different, (ii) controlling
authority has since made a contrary decision of the law applicable
13
to such issues, or (iii) the decision was clearly erroneous and
would work a manifest injustice”. Becerra, 155 F.3d at 752-53
(internal quotation marks omitted). Tollett relies on the first
and third prongs.
Tollett claims the evidence adduced during the post-remand
hearing was substantially different from that before the district
court prior to the first appeal. However, the “‘law of the case
exceptions apply only when substantially different evidence comes
out in the course of a subsequent trial authorized by the
mandate’”. Id. at 754 (emphasis added; quoting Barber v. Int’l
Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, &
Helpers, District Lodge #57, 841 F.2d 1067, 1072 n.5 (11th Cir.
1988)). Again, our mandate did not authorize proceedings to
redetermine who should be sanctioned and for what conduct; it
authorized only recalculating the fees and related costs, pursuant
to Rule 37. This exception does not apply.
Tollett also claims a “manifest injustice ... would be worked
if Helfand and the City are rewarded for lying to a district
court”. The third exception to the law of the case doctrine,
however, requires that the decision that constitutes the law of the
case — here, our opinion for the first appeal — be “clearly
erroneous” and “work a manifest injustice”. Tollett has pointed to
no aspect of our opinion in the first appeal that is clearly
erroneous. Likewise, she has not demonstrated how that opinion
14
would work a manifest injustice. Quite telling on this point is
Tollett’s not appealing the original sanctions award. Again, the
opinion simply remanded the matter for recalculation of attorney’s
fees and costs. This exception is also inapplicable.
The district court exceeded our mandate when it: (1)
redetermined whether and against whom sanctions should be imposed;
(2) imposed sanctions and attorney’s fees pursuant to its inherent
power, rather than Rule 37; and (3) assessed sanctions against
Helfand, who was not sanctioned in the original order. In short,
being without authority to impose those sanctions, the district
court abused its discretion. Accordingly, the sanctions and
attorney’s fees awarded by the judgment entered on 2 October 2000
are vacated.
b.
It goes without saying that, as a result of the revised
sanctions being vacated, the findings of fact and conclusions of
law in the district court’s post-remand orders, including those
concerning Helfand, are vacated as well. See, e.g., Garcia v.
Queen, Ltd., 487 F.2d 625, 628-29 (5th Cir. 1973) (vacating
findings of fact and conclusions of law where findings of fact were
made in violation of Seventh Amendment right to trial by jury). As
discussed below, the district court, in its original sanctions,
should have addressed any wrongdoing by individuals in addition to
the two it then sanctioned.
15
c.
It also goes without saying that a litigant’s taking an appeal
of right should not be a source of “insult” or “anger” for a
district judge. See 28 U.S.C. § 1291; Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 874 (1994) (characterizing an
appeal under § 1291 as an “appeal of right”). Soon after trial, in
the light of his expressed concerns, observations, and extensive
questioning, especially during trial, the district judge decided on
a course of action for sanctions. The district judge, as noted,
was quite concerned about the discovery dispute and belated
document production. As quoted earlier, his sanctions order
identified “perversions of the truth [that were] serious and
require[d] serious sanctions against the [two City employees
discussed in the sanctions order] and the City”. Therefore, he
confected sanctions “designed”, as he later said on remand, “to
ameliorate Ms. Tollett’s problem”.
The new trial motion was filed only six days after the
sanctions order. The assertions in that prompt new trial motion,
based on the City’s production of documents on the last day of
testimony, did not cause the district judge to increase, or
otherwise change, the sanctions. Moreover, they were far less than
those requested by Tollett; she had sought $50,000 in sanctions and
$7,500 in attorney’s fees. (Whether coincidental or not, on
remand, the court awarded $50,000 in sanctions, the amount
16
originally sought, but refused. Of course, on remand, Tollett had
increased the requested sanctions to $150,000, together with
$75,000 in attorney’s fees.)
It is unknown what the district judge meant when he said, on
remand, that the original sanctions had been “designed to
ameliorate Ms. Tollett’s problem”. In any event, the City was
obviously not required to agree with the district judge’s view of
appropriate sanctions for the discovery dispute. Nor was it,
nevertheless, required to accept the sanctions as a means of
putting an end to that dispute. To appeal was its right.
On remand, on this record, and notwithstanding our mandate, it
was far too late in the day for the district judge, “insulted” and
“ang[ered]” because the original sanctions had been appealed, to
decide upon a new sanctions course of action. Again, his concerns
should have been addressed and resolved by the original sanctions.
Arguably, the district judge’s actions equate with judicial
vindictiveness. See, e.g., North Carolina v. Pearce, 395 U.S. 711,
725 (1969) (holding imposition of greater penalty based upon a
successful appeal violates due process); United States v.
Schmeltzer, 20 F.3d 610, 612 (5th Cir.) (a litigant “has a right to
appeal free from fear of judicial retaliation for exercise of that
right”), cert. denied, 513 U.S. 1041 (1994).
2.
17
The district court’s revised sanctions having been vacated, we
must determine whether, once again, to remand for a recalculation
of the fees and costs to be awarded under the original order, or
whether, in the interest of judicial efficiency and economy, to
assess them ourselves, pursuant to Rule 37.
In Sidag Aktiengesellschaft v. Smoked Foods Prods. Co., Inc.,
960 F.2d 564, 566-67 (5th Cir. 1992), our court held that, where
“no useful purpose would be served by further delaying its final
disposition, not to mention exposing the parties and this court to
yet [another] appeal”, we may “determine the quantum of reasonable
attorney fees without the necessity of another remand” where
sufficient evidence exists in the record for our rendering such an
award. Accordingly, in Sidag, we awarded attorney’s fees based on
billing records and affidavits in the record. Id. at 567. See
Cobb v. Miller, 818 F.2d 1227, 1235 (5th Cir. 1987) (reversing
award of attorney’s fees and rendering judgment in the lodestar
amount).
For Rule 37 sanctions, the affidavit of movant’s counsel can
serve as proof of the amount to be awarded. See, e.g., Shipes v.
Trinity Indus., 987 F.2d 311, 323-24 (5th Cir.) (affirming Rule 37
sanctions based upon counsel’s affidavit), cert. denied, 510 U.S.
991 (1993). Such documents were submitted on remand by Tollett’s
counsel, during the March 2000 evidentiary hearing. Tollett’s
18
counsel’s affidavit, with attached billing records, is the record
evidence that permits us to render the award.
Along this line, and although we remanded for an assessment of
reasonable attorney’s fees and costs under Rule 37, see Tollett-
USCA, at 5, the district court instead awarded sanctions and
attorney’s fees, without mention of related costs. Perhaps, this
is because, in Tollett’s post-remand, amended sanctions motion, she
did not request related costs, nor did her counsel’s affidavit and
attached billing records document them. In any event, because
those costs are not provided in the record, we will award only
attorney’s fees.
As is well established, we primarily use “the ‘lodestar’
method to calculate attorney’s fees. [For this award, no
adjustment to the calculated lodestar amount is in order.] A
lodestar is calculated by multiplying the number of hours
reasonably expended by an appropriate hourly rate in the community
for such work”. Heidtman v. County of El Paso, 171 F.3d 1038, 1043
(5th Cir. 1999) (internal citation omitted; emphasis added).
Accordingly, based on Tollett’s counsel’s affidavit and the
attached billing records, we must determine both the reasonable
amount of time expended and the corresponding reasonable hourly
rate.
a.
19
For the reasonable time, in her original October 1997
sanctions motion, Tollett requested $7,500 in attorney’s fees,
asserting this amount was “reasonable and necessary in preparation
of the interrogatories, request for production, motion to compel
and motion for sanctions”. (Emphasis added.) Under Rule 37, if a
motion to compel is granted, the district court “shall ... require
the party ... whose conduct necessitated the motion or the party or
attorney advising such conduct or both of them to pay to the moving
party the reasonable expenses incurred in making the motion,
including attorney’s fees”. FED. R. CIV. P. 37(a)(4)(A). Likewise,
for failure to comply with a discovery order, the district court
“shall require the party failing to obey the order or the attorney
advising that party or both to pay the reasonable expenses,
including attorney’s fees, caused by the failure”. FED. R. CIV. P.
37(b)(2) (emphasis added).
Pursuant to Rule 37(a)(4), Tollett may recover fees incurred
for the motion to compel. Similarly, pursuant to Rule 37(b)(2),
Tollett’s fee request included those incurred for the original
sanctions motion. But, as emphasized above, that request also
sought recovery for fees incurred in formulating the underlying
discovery requests.
Again, under Rule 37, a party and its counsel “can only be
held responsible for the reasonable expenses [including attorney’s
fees] caused by their failure to comply with discovery”. Chapman
20
& Cole & CCP, Ltd. v. Itel Container Int’l B.V., 865 F.2d 676, 687
(5th Cir.), cert. denied, 493 U.S. 872 (1989); see Batson v. Neal
Spelce Assocs., Inc., 765 F.2d 511, 516 (5th Cir. 1985) (the “plain
language of Rule 37 ... provides that only those expenses,
including fees, caused by the failure to comply may be assessed
against the noncomplying party”). Obviously, the fees incurred for
the underlying discovery requests were not caused by any failure to
comply. Discovery dispute or no, those fees would have been
incurred.
Accordingly, under Rule 37, Tollett may recover her attorney’s
fees for the motions to compel and seeking the original sanctions.
According to the billing records attached to Tollett’s counsel’s
affidavit, counsel spent 12 hours preparing the motion to compel.
But, there is no entry pertaining to preparation of the sanctions
motion. In addition, there is no entry regarding such work in the
billing records attached to Tollett’s counsel’s amended affidavit.
(On remand, the amended affidavit was filed after the March 2000
evidentiary hearing and, in addition to the billing records
submitted with the original affidavit, included the billing records
pertaining to Tollett’s counsel’s preparation for and appearance at
that hearing.)
In sum, Tollett offered evidence that her counsel expended 12
hours for the motion to compel, but offered none regarding the
21
original sanctions motion. Therefore, the reasonable expended time
is 12 hours.
b.
As for a reasonable hourly rate, and as emphasized supra, the
“relevant market for purposes of determining the prevailing rate to
be paid in a fee award is the community in which the district court
sits”. Scham v. District Courts Trying Criminal Cases, 148 F.3d
554, 558 (5th Cir. 1998). Generally, the reasonable hourly rate
for a particular community is established through affidavits of
other attorneys practicing there. E.g., Watkins v. Fordice, 7 F.3d
453, 458 (5th Cir. 1993) (party seeking fees submitted “affidavits
from other attorneys in the community showing the prevailing market
rates in the community”). Tollett’s counsel did not offer such
affidavits and, instead, as discussed infra, relies upon his own
assertion in his affidavit that his is a reasonable rate.
In his affidavit, Tollett’s counsel: states “his normal[]
hourly rate ranges from $250.00 an hour to $500.00 an hour”; and
asserts that the hourly rate stated in the billing records, $300,
is reasonable. The City requests that we make a fees assessment
“based on the Plaintiff’s attorney fee affidavit ... and render
judgment for the Plaintiff in that amount”; in no way does the City
contest the reasonableness of the requested rate.
In addition, the City did not challenge the requested rate in
district court. In fact, on remand, in opposition to the sanctions
22
motion, the City essentially conceded the reasonableness of the
hourly rate; it requested only that the district court
carefully review [the] fee affidavit and
impose an award that reflects only the
expenses and fees caused by the City’s
purported failure to comply with the ...
discovery order. Even giving [Tollett’s
attorney] credit for having a skill
commensurate with a $300 per hour fee, this
amount should not exceed $5,000.
(Emphasis in original.)
We question that $300 is a reasonable hourly rate. But, only
because the City has not contested it, we hold that, based on
Tollett’s counsel’s affidavit, the reasonable hourly rate is $300.
See, e.g., Baulch v. Johns, 70 F.3d 813, 818 n.8 (5th Cir. 1995)
(approving requested hourly rate where such rate ($250-$330 per
hour) was not questioned by the opposing party or subjected to
adversarial testing, but declining to opine “on whether the rate
claimed would be reasonable in other cases in the Dallas area”).
As a result, for the Rule 37 reasonable expenses, we award
attorney’s fees in the amount of $3,600: 12 hours multiplied by a
$300 hourly rate. The City and the two City employees designated
in the district court’s 24 March 1998 sanctions order shall be
jointly and severally liable for this amount.
23
B.
Tollett contests the denial, on remand, of her new trial
motion, which she predicated on Rules 60(b)(2) and (3).* “Granting
or denying a motion under Rule 60(b) is within the discretion of
the district court, and we review that decision only for an abuse
of discretion”. In re Grimland, Inc., 243 F.3d 228, 233 (5th Cir.
2001). The district court did not abuse its discretion in not
granting the motion.
1.
A new trial would have been in excess of our mandate to only
recalculate the Rule 37 attorney’s fees. Along this line, in the
first appeal, we rejected Tollett’s claim that the judgment should
have been set aside under Rule 60(b) because she had not raised
that issue in district court.
2.
Assuming arguendo such grant would not have exceeded our
mandate, a motion — as at issue here — predicated upon Rules
*
Although the district court, as noted, did not explicitly
deny that motion, the entry of its “FINAL JUDGMENT” was an implicit
denial of any outstanding motions: in this instance, that for a
new trial. E.g., United States v. Depew, 210 F.3d 1061, 1065 (9th
Cir. 2000) (where judgment of conviction entered, court of appeals
treated district court’s failure to rule on a motion for employment
of an expert witness as a denial of the motion); Plumeau v. Sch.
Dist. #40 County of Yamhill, 130 F.3d 432, 439 & n.5 (9th Cir.
1997) (after entry of summary judgment, court of appeals held
magistrate judge’s “failure to rule on a motion is appealable” and,
despite such failure to rule, considered whether magistrate judge
properly denied the motion). Despite the district court’s failure
to rule, neither side subsequently requested that it do so.
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60(b)(1)-(3) must be filed “not more than one year after the
judgment ... was entered”. Judgment was entered on 20 March 1998;
the motion was not filed until 12 January 2000. Accordingly, it
was untimely.
III.
This appeal underscores why the mandate rule exists and, even
more so, why it must be followed. Had it been, the cost, waste,
damage, and other harm occasioned by the remand proceedings and
this necessary second appeal would have been avoided. Absent
exceptions not here present, the mandate must be followed — in
letter and in spirit.
For the foregoing reasons, the new trial denial is AFFIRMED;
the sanctions and attorney’s fees awarded by the final judgment
entered on 2 October 2000, together with the findings and
conclusions in the orders on remand, are VACATED; and, based upon
our recalculation of the sanctions originally awarded Sandy G.
Tollett, judgment is RENDERED against the City, Kathy Pierce, and
Peter Munoz, jointly and severally, in the amount of $3,600.
AFFIRMED in PART; VACATED in PART; and RENDERED
25