Ballard v. LA Democratic Party ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31417
Summary Calendar
KAREN BALLARD; JAMES WILSON; VIRGINIA GUY;
KENNETH GUY,
Plaintiffs-Appellants,
KENNETH R. FABRÉ; DEVAN PARDUE,
Appellants,
versus
LOUISIANA DEMOCRATIC PARTY; BEN JEFFERS,
Individually and as Chairman of the Louisiana
Democratic Party; TREY OURSO, Individually and
as Executive Director; PATSY ARCENEAUX,
Individually and as Chairperson of By-Laws
Committee; MARY JO CUTRER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 00-CV-287-C
--------------------
October 17, 2001
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
In an appeal arising from a 42 U.S.C. § 1983 civil rights
action, the appellants challenge the district court's grant of
certain defendants’ motions for attorney's fees and costs pursuant
to 42 U.S.C. § 1988 and 28 U.S.C. § 1927. The appellants contend
*
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opinion should not be published and is not precedent except under the limited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.
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that the 42 U.S.C. § 1988 motions were untimely and that neither
the 42 U.S.C. § 1988 nor the 28 U.S.C. § 1927 motions were
warranted by the record.
A 42 U.S.C. § 1988 motion for attorney's fees and costs
is timely if filed within 30 days after the movant received notice
of entry of judgment. See Walker v. City of Bogalusa, 168 F.3d
237, 239 (5th Cir. 1999). While the fee motions were not so filed
in this case, the district court did not clearly err in its
determination that its judgment may have led to confusion regarding
the deadline for filing the motions. See id. The judgment created
a 30-day deadline for filing a "motion for reconsideration";
however, the Federal Rules of Civil Procedure do not recognize such
a motion, the 10-day deadline for filing a Fed. R. Civ. P. 59(e)
cannot be extended, and the Fed. R. Civ. P. 60(b) motion may be
filed up to a year after judgment. See Lavespere v. Niagara Mach.
& Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990); Fed. R. Civ.
P. 6(b), 59(e), 60(b). Moreover, the judgment ordered the filing
of fee motions eight days prior to the hearing on the "motion for
reconsideration," which was never filed, without limiting the
applicability of that deadline to fee motions relating to the
"motion for reconsideration." In light of these special
circumstances and given that the instant fee motions were filed
within 30 days of the expiration of the court-created 30-day period
for filing a "motion for reconsideration," the district court did
not abuse its discretion in deeming the fee motions timely. See
Walker, 168 F.3d at 239-40; Cf. Gribble v. Harris, 625 F.2d 1173,
1174 (5th Cir. 1980) (holding that under the "unique circumstances"
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exception, an untimely appeal is allowed when the appellant
reasonably relied upon the district court's erroneous extension of
time to file a Fed. R. Civ. P. 52 or 59 motion or the district
court's entertaining of such motions despite their untimeliness).
The appellants have not argued in their brief that the
district court abused its discretion in finding that the
plaintiffs' claims were frivolous and granting the defendants' 42
U.S.C. § 1988 motions. See Walker, 168 F.3d at 239-40.
Accordingly, that ground for appeal is waived. Furthermore, as the
district court did not clearly err in determining that the
plaintiffs' attorneys unreasonably and vexatiously multiplied the
proceedings by moving to remand the case to state court, the
district court did not abuse its discretion in granting the
defendants' 28 U.S.C. § 1927 motions. See id. at 240.
AFFIRMED.