UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-20767
REGINALD T. MILLER,
Plaintiff-Appellant,
and
BEN G. LEVY,
Appellant,
VERSUS
HOME DEPOT U.S.A., INC.,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(CA-H 94-01)
July 15, 1996
Before KING, JONES, and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:1
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Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
Plaintiff Reginald T. Miller (“Miller”) and his attorney, Ben
G. Levy (“Levy”), appeal the district court’s order granting
Defendant Home Depot USA’s (“Home Depot”) motion for summary
judgment and sanctioning Appellants pursuant to Fed. R. Civ. P.
56(g) for filing ten improperly notarized affidavits. We reverse
the award of sanctions and affirm the grant of summary judgment.
BACKGROUND
Reginald T. Miller brought this suit against his former
employer, Home Depot, alleging that he was terminated on the basis
of race in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq., as well as in violation of
42 U.S.C. §§ 1981, 1983, 1985, and 1986. At all times, Miller was
represented by Ben G. Levy. After the completion of discovery,
Home Depot filed a motion for summary judgment. The district court
granted summary judgment on all claims except the Title VII racial
discrimination claim.
After the partial summary judgment was granted, counsel for
Home Depot discovered that ten affidavits submitted by Miller in
response to the motion for summary judgment had been improperly
notarized. While the affiants signed their respective affidavits
in Miller’s presence, the affidavits were neither signed nor sworn
to in the presence of a notary public. Instead, Levy’s paralegal
Robert Conner (“Conner”), a notary public, notarized the affidavits
under the limited circumstances set forth in Local Rule 47.5.4.
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upon Miller’s word that he had witnessed the signatures. After
Home Depot’s attorney contacted Levy about the improper
notarizations, Levy and Miller obtained properly notarized
affidavits from all the affiants containing the same testimony as
the original defective affidavits.
The district court held an evidentiary hearing concerning the
defective affidavits and then granted summary judgment on Miller’s
remaining race discrimination claim. The district court determined
that the improperly notarized affidavits should be stricken from
the record, and without the affidavits, Miller raised no genuine
issue of material fact as to the Title VII race discrimination
claim. The district court rejected Miller’s corrected affidavits
as untimely. Additionally, the district court found that Miller
and Levy acted in bad faith in filing the defective affidavits and
awarded Home Depot $8792.50 under Fed. R. Civ. P. 56(g) for its
fees and costs associated with responding to the affidavits.
Miller and Levy now appeal.
DISCUSSION
A. Standard of Review
We review the district court’s imposition of sanctions for an
abuse of discretion. See Kelly v. City of Leesville, 897 F.2d 172,
176 (5th Cir. 1990) (stating that “[t]he provisions of Rule 56(g)
are largely analogous [to Rule 11]”); Thomas v. Capital Security
Servs., Inc., 836 F.2d 866, 873 (5th Cir. 1988) (holding that the
standard of review imposed under Rule 11 is an abuse of
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discretion).
We review a grant of summary judgment de novo, applying the
same criteria used by the district court in the first instance.
Blanchard v. Forrest, 71 F.3d 1163, 1166 (5th Cir.), cert. denied,
1996 WL 226894 (June 17, 1996) (No. 95-1729). We review the facts
drawing all inferences most favorable to the nonmoving party.
Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir.
1994). Summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c).
B. Bad Faith under Rule 56(g)
The district court sanctioned Levy and Miller pursuant to Fed.
R. Civ. P. 56(g) for filing ten improperly notarized affidavits.
Federal Rule of Civil Procedure 56(g) provides:
Affidavits Made in Bad Faith. Should it appear to the
satisfaction of the court at any time that any of the
affidavits presented pursuant to this rule are presented in
bad faith or solely for the purpose of delay, the court shall
forthwith order the party employing them to pay to the other
party the amount of the reasonable expenses which the filing
of the affidavits caused the other party to incur, including
reasonable attorney’s fees, and any offending party or
attorney may be adjudged guilty of contempt.
Fed. R. Civ. P. 56 (g). Appellants contend that the submission of
the improperly notarized affidavits was merely a negligent mistake
and thus did not constitute bad faith under Rule 56(g).
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Our cases interpreting Rule 56(g) are few. We have found bad
faith under Rule 56(g) when the substance of a party’s summary
judgment affidavit contradicts an earlier admission or sworn
statement by the same party. See, e.g., Modica v. United States,
518 F.2d 374, 376 (5th Cir. 1975) (affirming award of costs under
Rule 56(g) where store owner’s affidavit stated that he had no
knowledge of violations of food stamp regulations, although he had
admitted such knowledge in earlier administrative proceedings).
But we have not yet decided whether a defect in the form of the
affidavit warrants Rule 56(g) sanctions. We need not decide that
question today, however, because the evidence does not support a
finding that Appellants acted in bad faith.
The district court rested its finding of bad faith largely on
the suspicious testimony of Levy’s paralegal, Connor. Connor
testified that he notarized the affidavits upon Miller’s oath that
the affiants had signed the affidavits and that he believed that
this procedure was “proper.” The district court reasoned, “That
Connor believed this was the proper procedure for notarizing an
affidavit would require an enormous stretch of the imagination.”
We, like the district court, have no doubt that the paralegal
deliberately violated the proper procedure for notarizing
affidavits. However, it is the behavior of the attorney, Levy, not
the paralegal, Connor, that is the focus of our inquiry. To incur
sanctions under Rule 56(g), Levy must have presented the affidavits
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to the court in bad faith.
No evidence suggests that Levy knew that the affidavits were
improperly notarized before he submitted them to the court.
Therefore, we must look to the Texas Disciplinary Rules of
Professional Conduct to determine whether the paralegal’s conduct
can be imputed to Levy in this instance. Rule 5.03(a) provides
that “a lawyer having direct supervisory authority over the
nonlawyer shall make reasonable efforts to ensure that the person’s
conduct is compatible with the professional obligations of the
lawyer.” TEX. DISCIPLINARY R. PROF. CONDUCT 5.03(a)(1991),
reprinted in TEX. GOV’T CODE ANN., tit.2, subtit.G app. (Vernon
Supp. 1996) (STATE BAR RULES art. X, § 9). Because Levy made
reasonable efforts to assure that the affidavits were presented
properly to the court, the district court erred in holding that he
presented the affidavits in bad faith and thereby violated Rule
56(g).
Mr. Levy was suffering from a diabetes-related illness on the
day that Miller brought the affidavits into the office for Connor
to notarize. Consequently, Levy had to rely on his paralegal, who
was a licensed notary public since 1980 and a formerly licensed
attorney, for the notarization of the affidavits. Any notary
public could notarize these affidavits without the assistance of a
lawyer, and thus, Levy reasonably believed that his experienced
paralegal (with over a decade of experience as a notary public)
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would follow “customary” procedure in his absence. In addition,
Levy had advised his client to make sure that the affidavits were
signed by the affiants before a notary public. In his letter to
the district court, Levy explained: “When I attached the affidavits
to our Response to Defendant’s Motion for Summary Judgment, and
later filed same, I did not know that the affidavits had not been
properly notarized. They appeared to be regular on their face, and
I assumed that Mr. Miller followed my advice concerning the proper
execution of the affidavits. . . .” No evidence suggests that Levy
knew or should have known that his client misunderstood his
instructions or that his experienced paralegal violated the laws
governing notarization. We therefore hold that Levy acted
reasonably in relying on the experience of his paralegal and in
instructing his client on the proper procedure for notarizing
affidavits. Accordingly, we reverse the district court’s sanction
order.
C. Untimely Affidavits
The district court did not err in holding that the corrected
affidavits were untimely. In this case, the corrected affidavits
were submitted after the court had issued its ruling on Home
Depot’s original motion for summary judgment. Thus, Appellants’
evidentiary submission was indeed untimely, both under Fed. R. Civ.
P. 56(c), which requires affidavits in opposition to a summary
judgment to be served “prior to the day of hearing,” and under Fed.
R. Civ. P. 6(d), which states more generally that “[w]hen a motion
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is supported by affidavit, . . . opposing affidavits may be served
not later than 1 day before the hearing, unless the court permits
them to be served at some other time.” Although Rule 6(b) allows
a court, “in its discretion,” to extend any filing deadline “for
cause shown,” a post-deadline extension must be “upon motion made,”
and is permissible only where the failure to meet the deadline “was
the result of excusable neglect.” See Lucan v. National Wildlife
Federation, 497 U.S. 871, 896 (1990). Here, Appellants made no
motion for extension nor any showing of “cause.” We therefore hold
that the district court did not abuse its discretion in excluding
the affidavits as untimely filed.2
CONCLUSION
For the foregoing reasons, we reverse the district court’s
award of sanctions and affirm the grant of summary judgment to
Home Depot.
2
Appellants’ brief presents no argument in support of the
assertion that, even if the district court was within its
discretion in striking the ten improperly notarized affidavits as
a sanction, the six remaining properly notarized affidavits raise
genuine issues of material fact regarding the racial discrimination
claim. “We need not consider issues or arguments not raised in the
appellant’s brief.” Pan E. Exploration Co. v. Hufo Oils, 855 F.2d
1106, 1124.
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