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
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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
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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...)
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(...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.
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