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holding that "a district court 'retains jurisdiction to resolve motions for sanctions and attorney's fees while a judgment on the merits is pending on appeal.'"
Summary of this case from S. U.S. Trade Ass'n v. Unidentified PartiesOpinion
CIVIL ACTION NO: 02-1429, SECTION: "R"
March 8, 2004
ORDER AND REASONS
Plaintiffs Shelba J. Gregg and Frank Gregg move the Court to review the magistrate judge's order, which granted attorneys' fees and costs to defendant James 0. Womack. For the following reasons, the Court denies plaintiffs' motion because it is untimely.
I. Background
Plaintiff Frank Gregg was a federal employee with the Army Corps of Engineers. Mr. Gregg alleges that he suffered injuries from an accident that involved a freighter and a crew boat. The Greggs hired defendants John Linder, II, James 0. Womack, and Patrick Berrigan to represent them in a third-party liability claim against Weeks Marina, Inc. and T.L. James Co., Inc. Defendants filed in this Court a claim for benefits on behalf of the Greggs under the Federal Employees' Compensation Act, 5 U.S.C. § 8101, et seq. The parties settled the case for $300,000, and defendants released the funds to the Greggs without government approval of the settlement. The government then notified the Greggs that they were liable to it for $162,228 that they had received from the government in disability payments. Plaintiffs then sued defendants in this Court in May 2002, alleging that defendants were negligent by entering into the settlement without protecting the government's interests.
In October 2002, during the discovery phase, defendant Womack filed a motion to compel, which included a request for attorneys' fees and costs incurred in bringing the discovery violation to the Court's attention. Magistrate Judge Roby held a hearing on the motion to compel in November 2002. The magistrate judge granted the motion to compel in part and deferred it in part, deferring defendant's request for attorneys' fees and costs. The magistrate then scheduled a hearing on attorneys' fees and costs in November 2002. On December 11, 2003, defendant filed his motion for attorneys' fees and costs in support of the expenses incurred in filing the motion to compel.
In March 2003, this Court granted defendants' motion for summary judgment, holding that plaintiffs' claims were perempted under Louisiana law. Plaintiffs appealed the grant of summary judgment to the Court of Appeals on March 17, 2003.
On March 28, 2003, ten days after plaintiffs appealed this Court's grant of summary judgment, the magistrate judge granted defendant Womack's motion to compel to the extent that he sought to recover attorneys' fees and costs. The magistrate judge awarded attorneys' fees and costs in the amount of $2,087.50 under Federal Rule of Civil Procedure 37(a)(4)(A). On April 10, 2003, plaintiffs appealed the magistrate judge's order to the Fifth Circuit Court of Appeals. Seven months later, in November 2003, plaintiffs filed a motion to review the magistrate judge's order in this Court.
In December 2003, the Court of Appeals dismissed plaintiffs' appeal of the magistrate judge's order of March 28, 2003 for lack of appellate jurisdiction. The Court of Appeals held that plaintiffs did not file an objection to the magistrate judge's order with the district court. Because plaintiffs had failed to file an objection, the Court of Appeals held that the magistrate judge's order did not constitute a final decision of the district court, and it therefore lacked jurisdiction to entertain the appeal. In addition, the Court of Appeals affirmed the Court's grant of summary judgment in favor of defendants.
Plaintiffs now move the Court to review the magistrate judge's order. Defendant has filed no opposition to the motion. Nevertheless, for the following reasons, the Court dismisses plaintiffs' motion as time-barred.
II. Discussion
A. Jurisdiction
Although plaintiffs do not contest the jurisdiction of the magistrate judge to determine attorneys' fees and costs after they had filed their notice of appeal, the Court has "a duty to raise the issue of subject-matter jurisdiction sua sponte." American Heritage Life Jus. Co. v. Lang, 321 F.3d 533, 537 (5th Cir. 2003) ( quoting HD Tire Automotive-Hardware, Inc. v. Pitney Bowes, Inc., 227 F.3d 326, 328 (5th Cir. 2000)). The general rule is that filing a notice of appeal divests the district court of jurisdiction to hear matters connected to the appeal. Procter Gamble Co. v. Amway Corp., 280 F.3d 519, 524 (5th Cir. 2002). Nevertheless, a district court "retains jurisdiction to resolve motions for sanctions and attorney's fees while a judgment on the merits is pending on appeal." Id.; see also Lancaster v. Indep. Sch. Dist. No. 5, 146 F.3d 1228, 1237 (10th Cir. 1998) (holding that an award of attorneys' fees under Rule 37 is collateral to the merits). Because a motion for attorneys' fees is collateral to the merits of the case, plaintiffs' appeal did not divest the Court of jurisdiction. The Court therefore finds that the magistrate judge had jurisdiction to entertain defendant's motion for attorneys' fees and costs after plaintiffs had filed their appeal of the grant of summary judgment.
B. Dispositive or Nondispositive Motion
A magistrate judge may "hear and determine any pretrial matter pending before the court." 28 U.S.C. § 636(b)(1)(A). A magistrate judge may consider both nondispositive and dispositive matters. FED. R. CIV. P. 72; see also 28 U.S.C. § 636 (b)(1). Rule 72 provides that a magistrate judge may issue an order that is "not dispositive of a claim or defense of a party." FED. R. Civ. P. 72. On the other hand, a magistrate may issue recommendations only over a "pretrial matter dispositive of a claim or defense of a party." See id. Rule 72, however, does not define the term dispositive.
To determine whether a matter is dispositive or nondispositive, therefore, courts have referred to 28 U.S.C. § 636 (b)(1)(A). Vaquillas Ranch Co. v. Texaco. Exp. Prod., Inc., 844 F. Supp. 1156, 1162 (S.D. Tex. 1994) (discussing cases in which courts have used section 636(b)(1)(A) to define dispositive). Section 636(b)(1)(A) lists the motions that a magistrate judge may not "hear and determine." 28 U.S.C. § 636(b)(1)(A). By referring to the list of motions in the statute, courts have concluded that a motion that is not listed in section 636(b)(1)(A), or a motion analogous to those not listed, is a nondispositive matter. Vaquillas Ranch, 844 F. Supp. at 1161 (citing Maisonville v. F2 Am., Inc., 902 F.2d 746, 748 (9th Cir. 1990)). A motion for attorneys' fees and costs is not listed under section 636(b)(1)(A). In addition, courts have found that a magistrate judge has the authority to determine a motion for attorneys' fees and costs pursuant to Rule 37(a)(4). Merritt v. Int'l Bhd. of Boilermakers, 649 F.2d 1013, 1018 (5th Cir. 1981). The Court therefore finds that a magistrate judge's award of attorneys' fees and costs under Rule 37(a)(4) is a nondispositive matter under Rule 72(a) for which a magistrate judge may issue an order, and not merely a report and recommendation.
C. Timeliness of Plaintiffs' Objection to the Magistrate Judge's Ruling
A magistrate judge's ruling on a nondispositive matter is effective immediately, and immediately appealable to the district court. Sunview Condo. Ass'n v. Flexel Int'l, Ltd., 116 F.3d 962, 964 (1st Cir. 1997) (citing 28 U.S.C. § 636(b)(1)(A)). If a party wishes to object to a magistrate judge's ruling on a nondispositive matter, it has ten days within which to file objections with the district judge. See FED. R. CIV. P. 72(a). If a party fails to timely object to a magistrate judge's ruling, "a party may not thereafter assign as error a defect in the magistrate judge's order." Id. The ten-day limit "is well-recognized among the Bench and the Bar as the controlling deadline for filing objections in magistrate judge matters." Bennett v. Employers Reins. Corp., No. Civ. A. 3:97CVI256D, 2000 WL 555422, at *1 (N.D. Tex. 2000).
Here, plaintiffs did not file objections to the magistrate judge's order with the Court within ten days. Instead, they appealed the magistrate judge's ruling directly to the Court of Appeals. To determine when plaintiffs should have filed their objections, the Court refers to Rules 6(a) and (e) of the Federal Rules of Civil Procedure. Bolton v. Callahan, 984 F. Supp. 510, 516 (N.D. Tex. 1997). Rule 6(a) states that when the allowed time period is less than eleven days, intermediate Saturdays, Sundays, and legal holidays are omitted from the calculation of the due date. FED. R. CIV. P. 6(a). Rule 6(e) allows a Court to add three days to an applicable time period when a party serves notice under Rule 5(b)(2)(B), (C), or (D). FED. R. CIV. P. 6(e). Magistrate Judge Roby entered her ruling on March 31, 2003. Under the shorter time period allowed by rule 6(a), plaintiffs had until April 14, 2003 to file their objections to the magistrate judge's ruling.
Plaintiffs' filed their appeal of the magistrate judge's ruling in the Court of Appeals on April 10, 2003 (within either calculation of the ten-day limit under rules 6(a) and (e)). However, when a party wishes to object to a magistrate judge's ruling, it generally must appeal to the district judge, not the Court of Appeals. See Perales v. Casillas, 950 F.2d 1066, 1071 (5th Cir. 1992). The courts formulated this rule to prevent "sandbagging," i.e., bypassing the district judge and raising objections to the magistrate judge's order for the first time in the Court of Appeals. See id. Before the Court of Appeals dismissed their appeal of the magistrate judge's ruling in December 2003, plaintiffs moved this Court to review her award of attorneys' fees and costs in November 2003.
Because plaintiffs' appeal did not divest the Court of jurisdiction, the dispositive issue here is whether the filing of an ineffective notice of appeal with the Court of Appeals tolls the ten-day period within which a party must file objections to a magistrate judge's order with the district court. The Court has been able to find one circumstance only during which the ten-day period does not begin to run upon entry of the magistrate judge's ruling. A motion to reconsider a magistrate judge's ruling, filed with the magistrate judge, will toll the ten-day period. See American Med. Sys., Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, No. CIV. A. 98-1788, 1999 WL 1138484, at *1 (E.D. La. 1999). Plaintiffs did not petition the magistrate judge to reconsider her ruling. Nor have plaintiffs favored the Court with any other authority to support the proposition that the filing of an ineffective notice of appeal tolls the ten-day period within which a party must file its objections to the magistrate judge's order. Therefore, the ten-day period to file objections with the district court applies here. Plaintiffs filed their motion to review in November 2003, well past the ten-day deadline. The Court therefore finds that plaintiffs' motion is time-barred.
Nevertheless, the Court may still consider the merits of plaintiffs' motion if it satisfies the requirements of Federal Rule of Procedure 6 (b)(2). This rule allows the Court in its discretion to consider a time-barred objection to a magistrate judge's ruling "upon motion made . . . where the failure to act was the result of excusable neglect." FED. R. CIV. P. 6(b)(2). As the Supreme Court has noted, Rule 6(b)(2) provides the Court with discretion to allow more time to a party to object to a magistrate judge's ruling, as well as "the mechanism by which that discretion is to be invoked and exercised." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 895-96 (1990) (emphasis added). For post-deadline extensions of time, the request must be made by motion and "is permissible only where the failure to meet the deadline was the result of excusable neglect.". Id. (citations omitted); see also Jones v. Central Bank, 161 F.3d 311, 314 n. 2 (5th Cir. 1998) (Smith, J., dissenting) (construing Lujan, 497 U.S. at 896). In addition, any extension must be "for cause shown." Lujan, 497 U.S. at 896. In plaintiffs' motion to review the magistrate judge's order, they make no formal request for additional time beyond the ten-day period, nor do they mention why the Court should consider their motion despite its tardiness. In fact, plaintiffs make no mention at all in their motion, either formally or informally, about the ten-day period and their failure to meet it. Absent a motion that requests additional time due to excusable neglect, the Court will not review the magistrate judge's ruling in this case.
The Court notes that the ten-day period may also be tolled when the magistrate judge's ruling does not contain a warning about the ten-day period. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Perales v. Casillas, 950 F.2d 1066, 1070-71 (5th Cir. 1992). However, this applies when the magistrate judge issues a report and recommendation only, not when she issues an order. In this Circuit, a magistrate judges' order on a nondispositive matter, as opposed to a report and recommendation, need not contain a Douglass notice. Compare Tasch, Inc. v. Unified Staffing Assocs., Inc., No. CIV. A. 02-3531, 2003 WL 23109790, at *1-*7 (E.D. La. 2003) (no Douglass notice in a magistrate judge's order and reasons awarding attorneys' fees and costs under Rule 37(a)(4)(A)), with Cousin v. Day, No. CIV. A. 00-3602, 2001 WL 34059380, at *21 (E.D. La.) ( Douglass notice in a magistrate judge's report and recommendation for a motion to dismiss). The lack of a Douglass notice in the magistrate judge's order does not allow the plaintiff to object to it now that the ten-day period has lapsed.
III. Conclusion
For the foregoing reasons, the Court dismisses plaintiffs' motion to review the magistrate judge's order as time-barred.