1 The district court also rejected Simon-Hartley's counterclaim for rescission of the license

agreement.

1 United States Court of Appeals,

Fifth Circuit.

No. 95-30898.

UNITED INDUSTRIES, INC., Plaintiff-Appellant,

v.

SIMON-HARTLEY, LTD., Defendant-Appellee.

Aug. 15, 1996.

Appeal from the United States District Court for the Middle District of Louisiana.

Before BENAVIDES, STEWART and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

United Industries, Inc. ("United") appeals from a denial of attorneys' fees. Because United

failed to comply with the procedural requirements for making such a fee request, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In May 1989, United sued appellee Simon-Hart l ey, Ltd. seeking reformation of a license

agreement. The license agreement included a choice of law provision that "this agreement shall be

interpreted and the rights of the parties dete rmined in accordance with English law." United's

complaint did not include a request for attorneys' fees. It did, however, request "costs." Similarly,

the pret rial order did not include a request for attorneys' fees. The district court conducted a

three-day b ench trial in September 1992. Following trial, the district court issued a memorandum

opinion on Oct o ber 29, 1992 indicating its intention to rule in United's favor on the reformation

claim. 1 Despite this initial ruling, the court specifically ordered the clerk to withhold entry of

judgment until the court issued its writ t en opinion. On April 5, 1994, the court issued its opinion

explaining the reasons for granting United's claim. Judgment was entered on April 11, 1994. SimonHartley then appealed and we affirmed in an unpublished per curiam opinion on March 23, 19952 United sought $490,641.75 in attorneys' fees to be taxed as costs.

2 under our local rule 47.6.

On April 28, 1995, nearly one year after entry of judgme nt , United filed a "Notice of

Application to Include Attorneys' Fees as Costs" in the district court. 2 United based its tardy claim

for fees on the English choice-of-law provision. United argued that under substantive English law

it was entitled to attorneys' fees as "costs" because it was the prevailing party. Without addressing

the merits of whether the English rule applied, the district court de nied the fee request for two

reasons. Initially, the court found that United's failure to request attorneys' fees in its complaint or

pretrial order precluded recovery. Alternatively, the court noted that the judgment in the case was

final and that it only had jurisdiction to enforce the judgment. This appeal ensued.

DISCUSSION

Because a jurisdictional issue has been raised, we briefly address this threshold matter. As

a general rule, a final judgment terminates litigation on the merits and leaves the district court with

nothing to do except execute the judgment. F irst Nationw ide Bank v. Summer House Joint Venture,

902 F.2d 1197, 1199 (5th Cir.1990). Similarly, once a case has been decided on appeal to this Court,

a lower cour t is not free to al ter our m andate. B arrett v. Thomas, 809 F.2d 1151, 1154 (5th

Ci r.1987). However, a district court is not precluded from acting on a matter neither before nor

acted upon by the appeals court. I d.; Engel v. Teleprompter Corp., 732 F.2d 1238, 1241 (5th

Cir.1984); s ee Albert T. Smith Co. v. Albertsons, Inc., 826 F.Supp. 1299, 1301 (D.Utah 1993). In

this case, it is undisputed that the issue of attorneys' fees was n ot raised before the di stri ct court.

Likewise, attorneys' fees were not an issue before t his Court on appeal. Consequently , at a

jurisdictional level, the district court is not precluded from ruling on the attorneys' fees issue by either

its final judgment or our mandate.

While the district court has, at a basic level, the authority to hear such a fee request, this does

not mean that United has co mplied wit h the procedural requirements making such a motion for

attorneys' fees appropriate. In its order denying United's fee request, the district court specifically3 "When items of special damage are claimed, they shall be specifically stated." Fed.R.Civ.P.

9(g).

3 grounded its ruling on the fact that United failed to plead for attorneys' fees. This was not reversible

error.

Our sister circuits routinely classify attorney's fees as special damages that must be specifically

pleaded under Federal Rule of Civil Procedure 9(g). 3 S ee Maidmore Realty Co., Inc. v. Maidmore

Realty Co., Inc., 474 F.2d 840, 843 (3d Cir.1973) ("Claims for att o rney fees are items of special

damage which must be specifically pleaded under Federal Rule of Civil Procedure 9(g)."); W estern

Casualty & Sur. Co. v. Southw estern Bell Tel. Co., 396 F.2d 351, 356 (8th Cir.1968) ("Claims for

attorneys' fees are also items of special damage which must be specifically pleaded under Fed.R.Civ.P.

9(g)."); see also In re American Casualty Co., 851 F.2d 794, 802 (6th Cir.1988); 5 Charles A.

Wright & Arthur R. Miller, Federal Practice & Procedure § 1310 (1990). Failure to plead waives

the right to attorneys' fees. Maidmore, 474 F.2d at 843; Western, 396 F.2d at 356; see 5 Charles

A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1312 (1990).

While this Circuit has not specifically held that attorneys' fees are items of special damage that

must be specifically pleaded, we have intimated that this is so. S ee Crosby v. Old Republic Ins. Co.,

978 F.2d 210, 211 n. 1 (5th Cir.1992) (noting that any pleading defect caused by a party's failure to

plead for attorney s fees under Rule 9 was cured by advancing the c laim during the pretrial

conference). Similarly, our district courts have denied attorneys' fees in the absence of appropriate

pleading and we have affirmed on appeal. S ee Wilson v. William Hall Chevrolet, Inc., 871 F.Supp.

279, 282-83 (S.D.Miss.1994), aff'd in part and rev'd in part

, 77 F.3d 479 (5th Cir.1996)

(unpublished per curiam) (affirming on all issues except award of interest). We have noted that there

may be exceptions to this general rule, such as when the issue is t ried by co nsent or included in a

pretri al order. S ee Crosby, 978 F.2d at 211 n. 1; s ee also Seybold v. Francis P. Dean, I nc., 628

F.Supp. 912, 914-15 (W.D.Pa.1986). Likewise, we have held that under certain circumstances not

present here that Rule 54(c) allows the district court to consider the fees issue even in the absence4 In Engel, plaintiffs-shareholders sued Teleprompter Corp. for breach of a subscription

agreement and for attorneys' fees under a contract provision entitling a prevailing party to fees.

732 F.2d at 1240. The non-jury trial resulted in judgment for the plaintiffs. On appeal, we

reversed and remanded with instructions to dismiss the complaint. On remand, the

now-prevailing party, Teleprompter, moved for fees as provided in the contract. The district

court denied the request. On subsequent appeal we reversed. Our reversal, however, was

specifically grounded in both the procedural posture of the case and the factual background of the

litigation. Procedurally, we noted that because Teleprompter was not the prevailing party in the

first suit, it could not have been required to request fees at that time. Consequently,

Teleprompter's failure to plead for fees as an initial defendant was not fatal to the later request

following remand. Id. at 1240-41. Additionally, we noted that the plaintiffs and Teleprompter

had an explicit contract provision that the prevailing party would be entitled to fees in the event of

litigation. Id. at 1240. The validity and interpretation of the provision was never in dispute.

Moreover, following remand to the district court, Teleprompter made a timely application for

attorneys' fees and submitted supporting materials before the district court officially entered its

final judgment. Id. at 1242. None of these characteristics are present in the case now before us.

5 While we do not address the merits of United's claim for fees under the choice-of-law

provision in the license agreement, we note our skepticism that such a clause targeting

interpretation of the contract terms also incorporates English fee-shifting.

4 of a specific pleading. S ee Engel, 732 F.2d at 1240-41. 4 As a general rule, however, we find nothing

inappropriate with requiring a party to put its adversaries on notice that attorneys' fees are at issue

in a timely fashion or waive that claim. This is accomplished by specifically pleading for attorneys'

fees in the complaint.

It is undisputed that United did not specially plead attorneys' fees under Rule 9(g). United

argues, however, that its request for "costs" should be deemed sufficient because, under English law,

attorneys' fees are awarded to the prevailing party as costs. We reject this semantic word game. If,

as United argues, its right to attorneys' fees is a substantive issue that requires application of English

fee-shifting law, then United was obligated to specifically plead for them under the procedural rules

that govern our courts. Having voluntarily sued in this forum, United has an obligation to put the

parties and the court on notice that attorneys' fees are at issue. A claim for attorneys' fees, premised

on an interpretation of a contract provision incorporating an English choice-of-law clause, 5 cannot

be buried in a general request for costs and then later resurrected a year after entry of final judgement.

Given the circumstances presented in this case, the district court did not abuse it s discretion in

denying an award of fees that were not timely requested.6 While the district court did not explicitly ground its denial of attorneys' fees on Rule 54(d), it

is well-settled that this Court will not reverse a judgment of the district court if it can be affirmed

on any grounds, regardless of whether the grounds were articulated by the district court. See

Bickford v. International Speedw ay Corp., 654 F.2d 1028, 1031 (5th Cir.1981). Additionally, the

district court's concern over United's belated request for attorneys' fees is consistent with the

procedural objectives embodied in Rule 54(d).

7 This motion requirement is waived if the substantive law governing the action provides for

recovery of such fees as an element of damages to be proved at trial. Fed.R.Civ.P. 54(d)(2)(A).

Attorneys fees that are recoverable as an element of damages, such as when sought under the

terms of a contract, must be claimed in a pleading. Fed.R.Civ.P. 54 advisory committee's note

(subdivision (d); paragraph 2).

8 United contends that amended Rule 54(d) should not apply in this case because it was tried

and initially decided by the district court in 1992. This argument, however, ignores the

subsequent opinion and judgment which were entered in 1994. Amended Rule 54(d) applies to all

civil actions commenced after December 1, 1993, and "insofar as just and practicable, all

proceedings in civil cases then pending." Order of the Supreme Court of the United States, Apr.

22, 1993, 146 F.R.D. 401, 404. Because the district court withheld entry of judgment until its

written opinion was issued in April 1994, this case was pending when amended Rule 54 took

effect. At that time, United could have easily complied with the rule and filed a motion for fees

within fourteen days of entry of judgment. United offers no explanation for its failure to comply

except to state that it would be unjust and impracticable. The cases United cites however are

easily distinguishable. See, e.g., Franz v. Lytle, 854 F.Supp. 753, 755 (D.Kan.1994) (declining to

apply amended rule to case that would have been completed prior to effective date of amended

rule except for delay caused by interlocutory appeal by losing defendants); Schw artz v. Dolan,

159 F.R.D. 380, 385 (N.D.N.Y.1995) (granting leave to file untimely motion for attorneys' fees in

the exercise of discretion under Rule 6(b)(2) due to excusable neglect).

5 Moreover, an additio nal reason supports the district court's judgment. United failed to

comply with Federal Rule of Civil Procedure 54(d)(2). 6 Rule 54(d) was amended with the express

purpose of harmonizing and clarifying the procedural requirements for attorn eys' fees requests.

Fed.R.Civ.P. 54 advisory committee's note (subdivision (d)); 10 Charles A. Wright, Arthur R. Miller

& Mary Kay Kane, Federal Practice & Procedure § 2679 (Supp.1996). Rule 54(d)(2)(A) requires

that claims for attorneys' fees must be made by separate motion to the district court. 7 Unless modified

by statute or court orde r, t his mo t ion for attorneys' fees must be filed fourteen days after entry of

judgment; must specify the statute, rule or other grounds entit ling t he movant to the award; and

must state the amount or fair estimate of t he amount sought. Fed.R.Civ.P. 54(d)(2)(B). This

amended rule took effect on December 1, 1993 and applies to this judgment that was entered in April

1994. 89 Aside from situations where attorneys' fees were proved as damages at trial, Rule 54(d) also

excepts claims for attorneys' fees as sanctions from the fourteen-day motion requirement.

Fed.R.Civ.P. 54(d)(2)(E).

6 This rule was promulgated for precisely the situation presented in this case. The Rule 54(d)

procedure was adopted for claims for attorneys' fees whether or not they are denominated as "costs."

Fed.R.Civ.P. 54 advisory committee's note (subdivision (d)); 10 Charles A. Wright, Arthur R. Miller

& Mary Kay Kane, Federal Practice & Procedure § 2679 (Supp.1996). A party seeking attorneys'

fees must make a t imely Rule 54(d)(2)(B) motion unless it falls under a 54(d) exception. 9 This rule

serves several laudable purposes that are underscored by United's failure to comply in this case. The

Rule assures that the opposing party has notice of the claim. Fed.R.Civ.P. 54 advisory committee's

note (subdivision (d)). Additionally, prompt filing may allow the district court to make its fee ruling

in time to allow appellate review at the same time as review on the merits. I d. It is undisputed that

United did not file a motion for attorneys' fees within fourteen days of entry of judgment as required

by Rule 54(d). This failure to file within the allot t ed period serves as a waiver of its claim for

attorneys' fees.

CONCLUSION

Under the procedural r ules t hat govern our courts, attorneys' fees must be specifically

requested in a timely fashion. This is accomplished by including a request for attorneys' fees in the

pleadings and by t imely filing a Rule 54(d) motion following entry of judgment, unless excepted from

the motion requirement because fees were proved as damages at trial. United failed to comply with

these proce dural requirements. The judgment of the district court denying attorneys' fees is

AFFIRMED.