Case: 15-30474 Document: 00513480494 Page: 1 Date Filed: 04/26/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 26, 2016
No. 15-30474
Lyle W. Cayce
Clerk
LESLIE SIMS, JR.; ROSA MARQUEZ; FLOYD S. AARON, III; HASSAR
SLEEM,
Plaintiffs - Appellants
v.
BOH BROTHERS CONSTRUCTION COMPANY, L.L.C., ET AL,
Defendants
GERALD EDWARD MEUNIER; DANIEL E. BECNEL, JR.; HUGH P.
LAMBERT; DARLEEN M. JACOBS; WALTER CLAYTON DUMAS;
JOSEPH M. BRUNO; JAMES PARKERSON ROY; PIERCE O'DONNELL;
JONATHAN B. ANDRY; HENRY CLAY MITCHELL, JR.,
Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:05-CV-4191
Before BENAVIDES, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-30474 Document: 00513480494 Page: 2 Date Filed: 04/26/2016
No. 15-30474
This appeal involves a consolidated class action brought on behalf of
thousands of plaintiffs for damages incurred in the wake of Hurricane Katrina.
The plaintiffs and their counsel are divided into different groups. After the
second settlement, two plaintiffs’ groups—the Levee Litigation Group and the
MR-GO Litigation Group, which are represented by Appellee Joseph M. Bruno
as liaison counsel (“Liaison Counsel”)—filed a motion for an award of the
maximum amount of costs and expenses allowed by the second settlement. A
different plaintiffs’ group—Appellants Leslie Sims, Jr., et al. (the “Sims
Plaintiffs”)—neither responded to the motion nor filed their own request for a
portion of the maximum allowable costs and expenses. The district court
granted the motion, awarding the Levee and MR-GO Litigation Groups,
jointly, the full amount requested. More than two months after Liaison
Counsel’s motion was filed, the Sims Plaintiffs filed a motion to vacate or
modify the cost award (the “Motion to Vacate”), contending that they should be
allowed to apply for an award of costs and expenses even though they had not
previously done so. The district court denied the Motion to Vacate, and the
Sims Plaintiffs now appeal that denial.
First, the Sims Plaintiffs contend the district court erred in using the
standards of Federal Rule of Civil Procedure 60(b), instead of Rule 54(b), to
analyze their Motion to Vacate. Because the Sims Plaintiffs did not raise this
issue before the district court in their Motion to Vacate or accompanying reply,
the issue is forfeited and reviewed for plain error only. In re Deepwater
Horizon, __ F.3d __ , 2016 WL 759890, at *3 (5th Cir. Feb. 25, 2016); Tilmon v.
Prator, 368 F.3d 521, 524 (5th Cir. 2004). For an error to be plain, the error
“must be clear or obvious, rather than subject to reasonable debate.” Jimenez
v. Wood Cty., Tex., 660 F.3d 841, 847 (5th Cir. 2011) (en banc) (citations
omitted). After considering the record, the briefs, and the applicable law, we
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No. 15-30474
find that—at a minimum—it is unclear and debatable whether the district
court erred in using the standards of Rule 60(b) and thus the district court did
not plainly error.
Second, the Sims Plaintiffs contend the district court erred in denying
them relief under Rule 60(b)(1) and (6). Rule 60(b) provides that the court may
grant relief for (1) “excusable neglect” or “(6) any other reason that justifies
relief.” FED. R. CIV. P. 60(b)(1), (6). A district court’s decision to grant or deny
relief under Rule 60(b) is reviewed for abuse of discretion. Wooten v. McDonald
Transit Assocs., Inc., 788 F.3d 490, 501 (5th Cir. 2015). The Sims Plaintiffs
claim their failure to respond to Liaison Counsel’s motion for a cost award or
file their own request for costs constitutes excusable neglect under Rule
60(b)(1) because their attorney did not receive electronic notice of Liaison
Counsel’s motion and because the district court did not set a deadline for filing
cost applications as it said it would. The Sims Plaintiffs also claim equity
supported granting their Motion to Vacate because they assisted in obtaining
reversal of the original settlement on appeal, which we construe as seeking
relief under Rule 60(b)(6). Considering the record, the appellate briefs, the
applicable law, and the district court’s thorough analysis, we find that the
district court did not abuse its discretion in denying relief under Rule 60(b)(1)
or (6). See Walker v. Transfrontera CV de SA, __ F. App’x __ , 2015 WL
9266637, at *1–4 (5th Cir. Dec. 18, 2015); Hess v. Cockrell, 281 F.3d 212, 216
(5th Cir. 2002); Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 356–57 (5th
Cir. 1993); Pryor v. U.S. Postal Serv., 769 F.2d 281, 287–88 (5th Cir. 1985).
For these reasons, the district court’s decision to deny the Sims Plaintiffs’
Motion to Vacate is AFFIRMED.
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