Tollett v. The City of Kemah

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.

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.

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).

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.

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).

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.

“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.

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).

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.

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.

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.

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.

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.

24
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