* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-20061

Summary Calendar

___________________

IN THE MATTER OF: MOSES MUZQUIZ, JR.,

Debtor.

MOSES MUZQUIZ, JR.,

Appellant,

versus

W. STEVE SMITH,

Appellee.

*********************************

IN THE MATTER OF: MOSES MUZQUIZ, JR.,

Debtor.

W. STEVE SMITH,

Appellee,

versus

MOSES MUZQUIZ, JR.,

Appellant.

________________________________________________

Appeal from the United States District Court for the

Southern District of Texas

________________________________________________

January 16, 1996

Before GARWOOD, WIENER and PARKER, Circuit Judges.*
2

GARWOOD, Circuit Judge:

Defendant-appellant Moses Muzquiz, Jr. (Muzquiz) appeals the

district court’s affirmance of the bankruptcy court’s denial of his

Motion to Set Aside Default Judgment and the award of Rule 11

sanctions against him.

Facts and Proceedings Below

Muzquiz filed for Chapter 7 bankruptcy in Houston, Texas, on

July 12, 1982. W. Steve Smith (Trustee) was appointed trustee of

the Muzquiz estate, and he filed an adversary proceeding against

Muzquiz and several other parties on December 23, 1983. Muzquiz

responded to the adversary proceeding in February 1984. He

thereafter moved to Michigan near the end of 1984. 

Trustee attempted to depose Muzquiz in Houston for nearly ten

months, beginning in early February 1985. Trustee first set

Muzquiz’s deposition for February 5, 1985. Muzquiz failed to

appear on that date, and he then filed a motion for a protective

order on February 13, 1985, arguing that the Trustee should have

deposed him while he lived in Houston. After the bankruptcy court

denied his motion for a protective order, Muzquiz, through his

attorney Thomson, consented to being deposed in Houston and to

paying sanctions to Trustee in the amount of $130. Despite this

consent and the bankruptcy court’s order, Muzquiz continued to fail

to appear in Houston for an oral deposition and refused to set a

date for such a deposition. In August 1985, Muzquiz filed another

motion for protective order; this time he argued that he could not

travel to Houston because of health problems. The bankruptcy court
1 Though he is counsel on this appeal, Thomson never attempts

to explain his signature on the returned receipt cards.

3

specifically found the letter from Muzquiz’s physician regarding

his health problems to be inconclusive and unconvincing. Neither

Muzquiz nor his attorney appeared at a noticed hearing in August

1985 regarding the Trustee’s Second Motion for Contempt and

additional sanctions. Muzquiz offers no excuse for his attorney's

failure to appear at the contempt hearing. 

After receiving warning that the failure to pay the sanctions

or to make himself available for deposition in Houston would result

in striking his pleadings and a default judgment, Muzquiz continued

to defy the court. The bankruptcy court entered default judgment

against Muzquiz on June 26, 1986. Because the default judgment did

not contain a sum certain, trial was set to make this

determination. In late 1986, notice of the trial to be held on

September 10, 1987, was sent to Muzquiz individually at two

different addresses in Michigan. He had failed to notify the

court, the Trustee, or his creditors of his new address. Notice

was also sent to his counsel of record, Joe Thomson, at two

addresses; Thomson signed receipts for these notices.1

Additionally, Muzquiz admitted in his deposition testimony that

Thomson informed him of the default judgment at some time in 1986.

Thomson also filed an Emergency Motion for Continuance of

Conference in Chambers on August 14, 1986, indicating that he had

been in contact with the court after default judgment was entered

and six days after the court ordered notice of trial served. 
2 The District Court granted a later Motion for Approval of

Substitution of Appellant’s Counsel on January 27, 1995.

4

The trial was held on the date set, and the Trustee put on

evidence. Neither Muzquiz nor Thomson appeared at the trial.

There is evidence that an attorney considering whether or not to

represent Muzquiz attended the trial as an observer and received a

copy of the Trustee’s proposed findings of fact and conclusions of

law. Final judgment, dated January 6, 1988, was entered against

Muzquiz. The docket sheet indicates that the parties were

notified.

On February 28, 1990, Muzquiz, through new counsel, moved to

set aside the default judgment under Rule 60(b) of the Federal

Rules of Civil Procedure. He based his motion on allegations that

the bankruptcy court relied on evidence given by a biased witness,

that he did not receive adequate notice of ongoing activities in

the case, and that he did not receive effective representation.

The bankruptcy court denied his motion and assessed Rule 11

sanctions against him in the amount of $2000 on June 1, 1990.

Muzquiz appealed the denial and the sanctions to the district

court. The district court affirmed the bankruptcy court’s orders

on December 22, 1994. On January 6, 1995, Joe Thomson began filing

a flurry of motions in the district court, apparently2 on behalf of

Muzquiz. The district court eventually denied all of his motions

except the one to allow substitution of counsel. Muzquiz filed a

notice of appeal to this Court on January 23, 1995. He filed his

First Amended Notice of Appeal in February 1995, and his Second
3 In an appeal from a district court review of a bankruptcy

court order, this Court independently reviews the bankruptcy

court’s decision. In re Precision Steel Shearing, Inc., 57 F.3d

321, 324 (3d Cir. 1995); see In re Holloway, 955 F.2d 1008, 1009-10

(5th Cir. 1992).

4 Muzquiz argues that lack of notice should extend this time

period, but the utter groundlessness of his claim of lack of notice

renders this argument wholly without merit. Muzquiz’s complaints

that he did not receive notice of the default judgment, the trial

setting to determine the sum certain, or of the final judgment are

without merit. It is clear from the record that Thomson received

notice of the default judgment and the trial setting. A litigant

“is deemed bound by the acts of his lawyer-agent and is considered

to have ‘notice of all facts, notice of which can be charged upon

5

Amended Notice of Appeal was filed on March 29, 1995. 

Discussion

I. Denial of Appellant’s Rule 60(b) Motion.

This Court reviews the denial of a Rule 60(b) motion for

relief from judgment under an abuse of discretion standard, which

only requires that the denying court’s3 decision be reasonable.

Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 353 (5th Cir.

1993). 

Rule 60(b) sets forth specific grounds for relief. In this

case, Muzquiz must show that he is entitled to relief either under

one of the particular grounds in subsection one (i.e., mistake,

inadvertence, surprise, or excusable neglect) or by proving “any

other reason justifying relief” under subsection six. All motions

made under Rule 60(b) must be made within a reasonable time, and

motions based on 60(b)(1) must be made not more than one year after

the final judgment was entered. Fed.R.Civ.P. 60(b). Because

Muzquiz filed his Rule 60(b) motion more than two years after final

judgment was entered against him, he cannot rely on Rule 60(b)(1).4
the attorney.’” Link v. Wabash R.R. Co., 82 S.Ct. at 1390 (citation

omitted). 

Even if Muzquiz was entitled to personal notice, he received

it. He admits to being informed of the default judgment in 1986,

and the mailing of notice to the two Michigan addresses afforded

him notice of the trial setting. See In re Eagle Bus Mfg., Inc.,

62 F3d 730, 735-36 (5th Cir. 1995). 

6

Consequently, Muzquiz must prove that the bankruptcy court abused

its discretion in denying his motion under Rule 60(b)(6).

To be eligible to have a motion granted under Rule 60(b)(6),

a movant must show the initial judgment to have been manifestly

unjust and that there are “exceptional circumstances” justifying

relief. Edward H. Bohlin Co., 6 F.3d at 357. Muzquiz fails to

meet either of these requirements. The bankruptcy court did not

abuse its discretion in denying his Rule 60(b) motion.

II. Sanctions for Contempt

Muzquiz also appeals the district court’s affirmance of the

$2000 Rule 11 sanction imposed by the bankruptcy court in

connection with his filing of the Motion to Set Aside Default

Judgment. A lower court’s imposition of Rule 11 sanctions will be

reversed only for abuse of discretion. Thomas v. Capital Sec.

Servs., Inc., 836 F.2d 866, 872 (5th Cir. 1988) (en banc). Muzquiz

attacks the bankruptcy court’s award of sanctions on three grounds:

he argues the award should be reversed because (1) the court

failed to state findings of fact and conclusions of law; (2) it

violated due process by failing to consider his response to the

motion for sanctions; and (3) Trustee provided no evidence of costs

associated with the motion.

A. Findings of Fact and the Merits of the Sanction
7

This Court only requires a court to issue specific findings of

fact and conclusions of law in support of a Rule 11 sanction if

“the basis and justification for [the] decision is not readily

discernible on the record.” Thomas, 836 F.2d at 883. It is

clear from the record in the instant case that the basis and

justification for the sanctions was that the Rule 60(b) motion was

not well-grounded in law or fact. 

Muzquiz’s Motion to Set Aside Default Judgment was meritless

if based on Rule 60(b)(1) because it was made more than a year

late. See Fed.R.Civ.P. 60(b). Although his motion might be

construed to make an argument for applying Rule 60(b)(1) beyond a

year in cases where the litigant was not notified of the judgment,

it is still groundless under Rule 60(b)(1) because the alleged lack

of notice was itself without basis in law or fact. A reasonable

inquiry by counsel would have shown that Muzquiz did receive notice

more than a year before the filing of the motion. Muzquiz asserts

no argument on appeal——other than the frivolous lack of notice

allegations——that the judgment was manifestly unjust or that there

were exceptional circumstances justifying relief. Because

Muzquiz’s Motion to Set Aside Default Judgment necessarily relied

on the alleged lack of notice, it had no basis in fact. 

B. Due Process Claims

Muzquiz also complains that the bankruptcy court awarded Rule

11 sanctions against him in violation of the Due Process Clause

because it ruled on the Trustee’s motion for sanctions prior to

receiving his reply brief, afforded him no opportunity to be heard,
5 In addition to the imputed notice Rule 11 imparts, Trustee

filed a motion for sanctions with its reply brief, explaining the

groundlessness for Muzquiz’s motion. Trustee certified that he

properly sent a copy of the motion and reply brief to Muzquiz.

Muzquiz did not present any evidence that he failed to receive

notice of the motion; he relies solely on a bare allegation in his

brief, neglecting to submit an affidavit to support this

contention. In contrast, Muzquiz also claimed that the bankruptcy

court “inadvertently tipped [him] off” about the Trustee’s motion

in its Certificate of Telephonic Notice, which he admits receiving

some time prior to the entry of sanctions against him.

The bankruptcy court did not rule on the notice of sanctions

issue. The district court impliedly found no merit in Muzquiz’s

claim of lack of notice of the sanctions when it affirmed the

bankruptcy court’s order of sanctions. Considering the history of

appellant’s conduct in this litigation, including repeated

misstatements of the facts, his dilatory tactics, and his

misunderstanding of the concept of notice, the district court did

not abuse its discretion in affirming the sanctions with an implied

determination that Muzquiz’s claim that he did not receive notice

of the sanctions was disingenuous. 

8

and held no evidentiary hearing. It is true that Rule 11 sanction

decisions must comport with due process, which means the sanctioned

party must receive notice and an opportunity to be heard. Childs

v. State Farm Mut. Auto. Ins. Co., 29 F.3d 1018, 1026 (5th Cir.

1994). Muzquiz received both.

The notice requirement for Rule 11 sanctions varies depending

on the conduct subject to review. Spiller v. Ella Smithers

Geriatric Center, 919 F.2d 339, 346 (5th Cir. 1990). This Court

has held that the existence of Rule 11 is, standing alone, enough

notice to an attorney who files court papers with no basis in

fact.5 Id.

Neither did the bankruptcy court’s failure to hold a hearing

deprive Muzquiz of his due process rights. See Alizadeh v. Safeway

Stores, Inc., 910 F.2d 234, 236 (5th Cir. 1990). In the instant

case Muzquiz claims that he did not have the opportunity to be
9

heard because the bankruptcy court issued sanctions without reading

his response to Trustee’s motion for sanctions. Trustee’s motion

was filed on March 12, 1990. The bankruptcy court did not rule on

the motion for over two and one half months. Muzquiz had the

opportunity to be heard by filing a response during that time. He

did not take advantage of the opportunity. Accordingly, the

district court did not abuse its discretion in affirming the

bankruptcy court order.

C. Amount of Sanctions

Courts are vested with “considerable discretion in determining

the ‘appropriate’ sanction” under Rule 11. Thomas, 836 F.2d at

877. This discretion should be exercised in a manner that fosters

the purpose of Rule 11: “to deter attorneys from violating the

rule.” Id. (emphasis in original); see Spiller, 919 F.2d at 345.

The least severe sanction adequate to serve that purpose should be

imposed. Thomas, 836 F.2d at 878. As previous sanctions of $130

and $3500 did not persuade Muzquiz to comply with bankruptcy court

orders, the sanction in the amount of $2000 was not an abuse of

discretion. See Markwell v. County of Bexar, 878 F.2d 899, 903

(5th Cir. 1989).

Conclusion

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.