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 district2

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 mo tion 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 fo r abuse of discretion. S ee 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 [for3

att orneys’ fees] must be filed and served no later than 14 days

a fter entry of judgment . . . .” Fed. R. Civ. P. 54(d)(2)(B)

(emphasis adde d). 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 Loc al 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 prerevision case, the Supreme Court explicitly noted that

jurisdictions may have “valid local reasons for estab lishing

different time limits [for filing for attorneys’ fees],” and

acknowledged district courts’ ability to establish timeliness

standards by local rule. W hite 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 Comm ittee 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 Central1 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 Bank’s motion for attorneys’ fees. 1

The district court did not abuse its discretion in denying

Jones’ motion for reconside ration of the attorneys’ fees award

based on the untimeliness of Central Bank’s motion, because Central

Bank’s motion was indeed timely.

AFFIRMED.

ENDRECORDJERRY E. SMITH, Circuit Judge, dissenting:

I respectfully dissen t from the majority's conclusion that

Central Bank's motion for costs and attorneys' fees was timely

under F ED

. R. C IV

. 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 h and, allows 30 days for filing such a motion. S ee E.D.

L A

. 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 dist rict court, satisfies rule 54(d)(2)'s

requirement that an extension beyond 14 d ays 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 mot ion in that case . That

i nitial 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, F ED

. R. C IV

. 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 syno nymous with “local rules of any2 The sam e distinction is suggested by the fact that F E D

. R.

C IV

. P. 54(d)(2)(D) permits courts to establish procedures for res olving

attorneys' fees issues “[b]y local rule,” whereas F ED

. R. C IV

. P. 54(d)(2)(B) SS the

subrule at issue here SS refers only to exceptions “by statute or order of the

court.” I doubt the contrasting language w ithin the same rule 54 is accidental.

Finally, F ED

. R. C IV

. 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 district cour t”; otherwise, rule 6 would contain a redundancy.

Likewise, F ED

. R. C I V

. 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), F ED

. R. C IV

. 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), F E D

. R

.

C IV

. P., p rovides 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), F E D

. R. C IV

.

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 fro m 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.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 p ost deadline extension must be

(continued...)

7 The majority aptly cites the only circuit a uthority on this

question, Johnson v. Lafayett e Fire Fighters Ass'n , 51 F.3d 726,

728-30 (7th Cir. 1995). J ohnson 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 inte nded 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 und erstood the distinction between an order and a

rule.

10 J AMES W M

. M OORE ET AL

., M OORE ' S F EDERAL P RACTICE § 54.151[2][b],

a t 54-219 (3d ed. 1997). I agree with these sentiments and,

accordingly, would reverse. 3(...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

alre ady been invoked and a case in which it has not. In H etzel

, the court's

allowance of the late filing can be read as a s ua 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 court SS albeit with the best of intentions SSwas not following up on the preexisting 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.

8