Jones v. Central Bank

                      UNITED STATES COURT OF APPEALS

                          For the Fifth Circuit




                               No.    97-31308




                               DEWEY JONES,

                                                       Plaintiff-Appellant,
                                     VERSUS

                               CENTRAL BANK,

                                                          Defendant-Appellee.



             Appeal from the United States District Court
                 For the Eastern District of Louisiana
                            December 7, 1998


Before SMITH, DUHÉ, and WIENER, Circuit Judges.

JOHN M. DUHÉ JR., Circuit Judge:

     Dewey Jones appeals the district court’s award of attorney’s

fees and costs to Central Bank, claiming that the motion was

untimely.    Jones also appeals the district court’s denial of his

motion to reconsider the award.        Because Central Bank’s motion was

timely, we affirm.

I.   BACKGROUND

     Dewey    Jones   sued   Central    Bank   and   Jo   Ann   Pickering   for

Employee Retirement Income Security Act and federal securities law

violations. The defendants’ answer claimed that they were entitled

to attorneys’ fees under 29 U.S.C. § 1132(g)(1).                 The district
court granted Central Bank and Pickering partial summary judgment,

dismissing all claims against Pickering and some claims against

Central Bank.      After a bench trial on the remaining claims, the

court ruled in Central Bank’s favor.           The court signed a judgment

dismissing Jones’ claims with prejudice on July 16, 1997 (entered

July 17, 1997).      On August 1, 1997, 15 days after the entry of

judgment, Central Bank moved for costs and attorneys’ fees under §

502(g)(1). Jones opposed the motion as untimely under Federal Rule

of Civil Procedure 54(d)(2)(B).              The trial court granted the

motion.     Jones moved for reconsideration of the judgment under

Federal Rule of Civil Procedure 59(e), claiming that the court had

failed to address the timeliness issue.            The judge denied Jones’

motion to reconsider, and granted Central Bank an extension of time

in which to move for attorney’s fees.           Jones appeals the grant of

Central Bank’s motion for costs and fees, and the denial of his

motion to reconsider.



II.   Standard of Review

      We review the court’s decision to grant attorneys’ fees under

§ 502(g)(1) for abuse of discretion.           See Wegner v. Standard Ins.

Co., 129 F.3d 814, 820-21 (5th Cir. 1997).            We also review denial

of Rule 59(e) motions for abuse of discretion.               See Martinez v.

Johnson, 104 F.3d 769, 771 (5th Cir. 1997).

      Central Bank moved for attorneys’ fees 15 days after entry of

judgment.    Under revised Rule 54 (d)(2)(B), “[u]nless otherwise

provided    by   statute   or   order   of   the   court,   the   motion   [for


                                        2
attorneys’ fees] must be filed and served no later than 14 days

after entry of judgment . . . .”                  Fed. R. Civ. P. 54(d)(2)(B)

(emphasis added).         Local Rule 54.3 requires a party to move for

fees “[w]ithin 30 days after receiving notice of entry of judgment

. . . .”    Unif. Local R. U.S. Dist. Cts. E., M., W. Dists. La 54.3.

A local rule must be adopted by a majority of the district judges

and followed by all, see 12 Wright, Miller & Marcus, Federal

Practice and Procedure: Civil § 3153 (2d ed. 1997), in effect

serving as a standing order within the district, see Johnson v.

Lafayette Fire Fighters Ass’n Local 472, Int’l Ass’n of Fire

Fighters,    AFL-CIO-CLC,          51   F.3d     726,    729     (7th   Cir.      1995).

Therefore, the local rule is a court order satisfying the “unless”

clause of Federal Rule 54(d)(2)(B).               See id.        Further, in a pre-

revision     case,       the     Supreme       Court    explicitly        noted     that

jurisdictions      may    have    “valid   local       reasons    for   establishing

different time limits [for filing for attorneys’ fees],” and

acknowledged      district      courts’    ability      to    establish    timeliness

standards    by   local        rule.    White     v.    New    Hampshire    Dep’t     of

Employment Sec., 455 U.S. 445, 454 n.16, 454 (1982).                      Neither the

rule’s language nor the Advisory Committee Notes require uniform

time limits or strip district courts of their ability to set these

limits by local rule.           Since the motion was timely under the local

rule, and therefore under the “unless” clause of the Federal Rule,

the district court did not abuse its discretion in granting Central




                                           3
Bank’s motion for attorneys’ fees.1

     The district court did not abuse its discretion in denying

Jones’ motion for reconsideration of the attorneys’ fees award

based on the untimeliness of Central Bank’s motion, because Central

Bank’s motion was indeed timely.

AFFIRMED.




ENDRECORD




     1
      Even if Local Rule 54.3 is not considered a court order for
purposes of Federal Rule 54(d)(2)(B), the district court has broad
discretion to expand filing deadlines under Fed. R. Civ. P. 6(b).
See Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 367 (1995).
Jones had notice that Central Bank might seek attorneys’ fees and
costs since Central Bank asserted in its answer to Jones’ complaint
its entitlement thereto. Accepting Central Bank’s motion one day
late would not constitute abuse of discretion. See id. at 360-67
(holding that the district court did not abuse its discretion by
accepting a summary judgment motion filed one day late).

                                   4
JERRY E. SMITH, Circuit Judge, dissenting:



      I respectfully dissent from the majority's conclusion that

Central Bank's motion for costs and attorneys' fees was timely

under FED. R. CIV. P. 54(d)(2), which reads:                 “Unless otherwise

provided by statute or order of the court, the motion [for fees and

costs] must be filed and served no later than 14 days after entry

of judgment . . . .”        The district court's local rule 54.3, on the

other hand, allows 30 days for filing such a motion.                    See E.D.

LA.   R.    54.3.     The    question,   which    the    majority      accurately

identifies, is whether the enactment of a local rule, by order of

the   judges    of   the    district   court,    satisfies      rule   54(d)(2)'s

requirement that an extension beyond 14 days be “by order of the

court.”

      If unburdened by caselaw or other indications of what is

intended by the rule, I would read the words “order of the court”

to mean a specific order of a district judge in a given case,

extending the time for filing a fee motion in that case.                     That

initial impression is reinforced considerably by a survey of the

Federal Rules of Civil Procedure, in which there are several

instances in which the writers have used “rules” and “orders” to

mean distinctly different things.

      For    example,      FED. R. CIV. P.      6(a)    gives   directions   for

“computing any period of time prescribed or allowed by these rules,

by the local rules of any district court, by order of court, or by

any applicable statute . . . .”          This is an undeniable indication

that “order of court” is not synonymous with “local rules of any
district court”; otherwise, rule 6 would contain a redundancy.

                Likewise,       FED. R. CIV. P.             26(a)(1)         requires       certain

initial disclosures “[e]xcept to the extent otherwise stipulated or

directed by order or local rule . . . .”                          (Emphasis added.)               Rule

30(d)(2), FED. R. CIV. P., is to the same effect, stating that “[b]y

order or local rule, the court may limit the time permitted for the

conduct of a deposition.”                 (Emphasis added.)             Rule 73(a), FED. R.

CIV. P., provides that magistrate judges may preside over civil

cases “[w]hen designated . . . by local rule or order of the

district court . . . .”                (Emphasis added.)           Rule 77(c), FED. R. CIV.

P., says “[a] district court may provide by local rule or order

that its clerk's office shall be open” at certain times. (Emphasis

added.)2

      All       of    these    excerpts      from        the   Federal        Rules        of    Civil

Procedure indicate, with precision, that court orders are not the

same thing as local rules.                       It can be no accident that this

distinction appears repeatedly in the rules.


            2
                The   same    distinction    is       suggested   by   the    fact   that       FED. R.

CIV. P. 54(d)(2)(D)          permits    courts   to    establish    procedures       for    resolving

attorneys' fees issues “[b]y local rule,” whereas FED. R. CIV. P. 54(d)(2)(B)SSthe
subrule at issue hereSSrefers only to exceptions “by statute or order of the
court.” I doubt the contrasting language within the same rule 54 is accidental.



      Finally, FED. R. CIV. P. 83 advisory committee's note draws the same
distinction.     It explains that “[t]he last sentence of Rule 83 has been amended

to make certain that standing orders are not inconsistent with . . . any local
district court rules.”         (Emphasis added.)

                                                  6
      The majority aptly cites the only circuit authority on this

question, Johnson v. Lafayette Fire Fighters Ass'n, 51 F.3d 726,

728-30 (7th Cir. 1995).         Johnson is not binding on this court, and

I would hold that it is error. Despite its informative elucidation

of the development of federal and local rules, Johnson does not

address     any   of   the   problems    with   its   approach    that    I   have

mentioned.

      Johnson properly has been criticized by a leading treatise:

            The adoption of Rule 54(d)(2) was intended to
      provide a uniform time for fee motions and to ensure that
      the fee opponent has notice of the motion in time to
      affect the decision to appeal . . . . If local rules are
      allowed to displace rule 54(d)(2), these purposes of the
      national rule will be defeated.         In allowing the
      provisions of Rule 54(d)(2) to be displaced by an “order
      of the court,” the drafters were merely recognizing that,
      in some cases, an order extending the time period would
      be more fair to the litigants. Moreover, in simultaneous
      amendments, the drafters expressly provided that the
      disclosure requirements of Rule 26 could be altered by
      “order or local rule,” thus demonstrating that they knew
      and understood the distinction between an order and a
      rule.

10 JAMES WM. MOORE      ET   AL.,   MOORE'S FEDERAL PRACTICE § 54.151[2][b],

at 54-219 (3d ed. 1997).             I agree with these sentiments and,

accordingly, would reverse.3


      3
          As an alternative justification for its holding, the majority relies on

Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 367 (5th Cir. 1995).       Hetzel has
nothing to do with rule 54(d)(2)(B), and, more importantly, it does not address the
fact that rule 6(b)(2) requires that, once a deadline has expired (as occurred in

the instant case), leave to file late can be granted only “upon motion made.” The

Supreme Court said so explicitly in construing rule 6(b) in Lujan v. National
Wildlife Fed'n, 497 U.S. 871, 896 (1990):    “[A]ny postdeadline extension must be
                                                                 (continued...)

                                         7
(...continued)
'upon motion made,' and is permissible only where the failure to meet the deadline

'was the result of excusable neglect.'” In other words, there is no discretion to

grant a post-deadline extension absent a motion and showing of excusable neglect.



      Hetzel is distinguishable on the ground that that court had already granted

an order that had the effect of extending the time for filing.      There is a real
difference between a case in which the court's authority to extend a deadline has

already been invoked and a case in which it has not.        In Hetzel, the court's

allowance of the late filing can be read as a sua sponte modification of the

original order allowing an extension or, alternatively, as an exercise of authority

under the rubric of the original order.


      In Jones, on the other hand, the court's authority had not been invoked, and

the court never undertook a legitimate exercise of that authority. In other words,
the Jones courtSSalbeit with the best of intentionsSSwas not following up on the pre-
existing exercise of its equitable authority to extend a filing deadline, but rather

was excusing a late filing in a wholly unauthorized way.       I also note that in

Hetzel, the panel placed considerable reliance on the fact that the extension was
for only one day.

                                         8