1 Pursuant to Local Rule 47.5, the Court has determined that

this opinion should not be published and is not precedent except UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-20767

REGINALD T. MILLER,

Plaintiff-Appellant,

and

BEN G. LEVY,

Appellant,

VERSUS

HOME DEPOT U.S.A., INC.,

Defendant-Appellee.

Appeal from the United States District Court

For the Southern District of Texas

(CA-H 94-01)

July 15, 1996 Before KING, JONES, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge: 1under the limited circumstances set forth in Local Rule 47.5.4.

2 Plaintiff Reginald T. Miller (“Miller”) and his attorney, Ben

G. Levy (“Levy”), appeal the district court’s order granting

Defendant H ome Depot USA’s (“Home Depot”) motion for summary

judgment and sanctioning Appellants pursuant to Fed. R. Civ. P.

56(g) for filing ten improperly notarized affidavits. We reverse

the award of sanctions and affirm the grant of summary judgment.

BACKGROUND

Regina ld T. Miller brought this suit against his former

employer, Home Depot, alleging that he was terminated on the basis

of race in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. § 2000e et seq., as well as in violation of

42 U.S.C. §§ 1981, 1983, 1985, and 1986. At all times, Miller was

represented by Ben G. Levy. After the completion of discovery,

Home Depot filed a motion for summary judgment. The district court

granted summary judgment on all claims except the Title VII racial

discrimination claim.

After the partial summary judgment was granted, counsel for

Home Depo t discovered that ten affidavits submitted by Miller in

response to the motion for summary judgment had been improperly

notarized. While the affiants signed their respective affidavits

in Miller’s presence, the affidavits were neither signed nor sworn

to in the presence of a notary public. Instead, Levy’s paralegal

Robert Conner (“Conner”), a notary public, notarized the affidavits3

upon Miller’s word that he had witnessed the signatures. After

Home Depot’s attorney contacte d Levy about the improper

notarizations, Levy and Miller obtained properly notarized

affidavits from all the affiants containing the same testimony as

the original defective affidavits.

The district court held an evidentiary hearing concerning the

defective affidavits and then granted summary judgment on Miller’s

remaining race discrimination claim. The district court determined

that the improp erly notarized affidavits should be stricken from

the record, and without the affidavits, Miller raised no genuine

issue of material fact as to the Title VII race discrimination

claim. The district court rejected Miller’s corrected affidavits

as untimely. Additionally, the district court found that Miller

and Levy acted in bad faith in filing the defective affidavits and

awarded Home Depot $8792.50 under Fed. R. Ci v. P. 56(g) for its

fees and costs associated with responding to the affidavits.

Miller and Levy now appeal.

DISCUSSION

A. Standard of Review

We review the district court’s imposition of sanctions for an

abuse of discretion. S ee Kelly v. City of Leesville

, 897 F.2d 172,

176 (5th Cir. 1990) (stating that “[t]he provisions of Rule 56(g)

are largely analogous [to R ule 11]”); T homas v. Capital Security

Servs., Inc. , 836 F.2d 866, 873 (5th Cir. 1988) (holding that the

standard of review imposed under Rule 11 is an abuse of4

discretion).

We review a grant of summary judgment de novo, applying the

same criteria used by the district court in the first instance.

Blanchard v. Forrest

, 71 F.3d 1163, 1166 (5th Cir.), cert. denied

,

1996 WL 226894 (June 17, 1996) (No. 95-1729). We review the facts

drawing all inferences most favorable to the nonmoving party.

Lemelle v. Universal Mfg. Corp

., 18 F.3d 1268, 1272 (5th Cir.

1994). Summary judgment is proper “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact a nd that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

B. Bad Faith under Rule 56(g)

The district court sanctioned Levy and Miller pursuant to Fed.

R. Civ. P. 56(g) for filing ten improperly notarized affidavits.

Federal Rule of Civil Procedure 56(g) provides:

Affid avits Made in Bad Faith . Should it appear to the

satisfaction of the court at any time that any of the

affidavits presented pursuant to this rule are presented in

bad faith or solely for the purpose of delay, the court shall

forthwith order the party employing them to pay to the other

party the amount of the reasonable expenses which the filing

of the affidavits caused the other party to incur, including

reasonable attorney’s fees, and any offending party or

attorney may be adjudged guilty of contempt.

Fed. R. Civ. P. 56 (g). Appellants contend that the submission of

the improperly notarized affidavits was merely a negligent mistake

and thus did not constitute bad faith under Rule 56(g).5

Our cases interpreting Rule 56(g) are few. We have found bad

faith under Rule 56(g) when the substance of a party’s summary

judgment af fidavit contradicts an earlier admission or sworn

statement by the same party. See, e.g., Modica v. United States

,

518 F.2d 374, 376 (5th Cir. 1975) (affirming award of costs under

Rule 56(g) where store owner’s affidavit stated that he had no

knowledge of violations of food stamp regulations, although he had

admitted such knowledge in earlier administrative proceedings).

But we have not yet decided whether a defect in the form of the

affidavit warrants Rule 56(g) sanctions. We need not decide that

question today, however, because th e evidence does not support a

finding that Appellants acted in bad faith.

The district court rested its finding of bad faith largely on

the suspicious testimony of Levy’s paralegal, Connor. Connor

testified that he notarized the affidavits upon Miller’s oath that

the affiants had signed the affidavits and that he believed that

this procedure was “proper.” The district court reasoned, “That

Connor believed this was the proper procedure f or notarizing an

affidavit would require an enormous stretch of the imagination.”

We, like the district court, have no doubt that the paralegal

deliberately violated the proper procedure for notarizing

affidavits. However, it is the behavior of the a ttorney

, Levy, not

the paralegal

, Connor, that is the focus of our inquiry. To incur

sanctions under Rule 56(g), Levy must have presented the affidavits6

to the court in bad faith.

No evidence suggests that Levy knew that the affidavits were

improperly notarized befo re he submitted them to the court.

Therefore, we must look to th e Texas Disciplinary Rules of

Professional Conduct to determine whether the paralegal’s conduct

can be imputed to Levy in this inst ance. Rule 5.03(a) provides

that “a lawyer having direct supervi sory authority over the

nonlawyer shall make reasonable efforts to ensure that the person’s

c onduct is compatible with the professional obligations of th e

lawyer.” TEX. DISCIPLINARY R. PROF. CONDUCT 5.03(a)(1991),

r eprinted in TEX. GOV’T CODE ANN., tit.2, subtit.G app. (Vernon

Supp. 1996) (STATE BAR RULES art. X, § 9). Because Levy made

reasonable efforts to assur e that the affidavits were presented

properly to the court, the district court erred in holding that he

presented the affidavits in bad faith and thereby violated Rule

56(g).

Mr. Levy was suffering from a diabetes-related illness on the

day that Miller brought the affidavits into the office for Connor

to notarize. Consequently, Levy had to rely on his paralegal, who

was a licensed notary public since 1980 and a formerly licensed

attorney, for the no tarization of the affidavits. Any notary

public could notarize these affidavits without the assistance of a

lawyer, and thus , Levy reasonably believed that his experienced

paralegal (with over a decade of experience as a notary public)7

would follow “customary” procedure in his absence. In addition,

Levy had advised his client to make sure that the affidavits were

signed by the affia nts before a notary public. In his letter to

the district court, Levy explained: “When I attached the affidavits

to our Response to Defendant’s Motion for Summary Judgm ent, and

later filed same, I did not know that the affidavits had not been

properly notarized. They appeared to be regular on their face, and

I assumed that Mr. Miller followed my advice concerning the proper

execution of the affidavits.

. . .” No evidence suggests that Levy

knew or should have known that his client misunderstood his

instructions or that his experience d paralegal violated the laws

governi ng notarization. We therefore hold that Levy acted

reasonably in relying on the experience of his paralegal and in

instructing his client on the proper procedure for notarizing

affidavits. Accordingly, we reverse the district court’s sanction

order.

C. Untimely Affidavits

The district court did not err in holding that the corrected

affidavits were untimely. In this case, the corrected affidavits

were submitted after the court had issued its ruling on Home

Depot’s original motion for summary judgment. Thus, Appellants’

evidentiary submission was indeed untimely, both under Fed. R. Civ.

P. 56(c), which requires affidavits in opposition to a summary

judgment to be served “prior to the day of hearing,” and under Fed.

R. Civ. P. 6(d), which states more generally that “[w]hen a motion2 Appellants’ brief presents no argument in support of the

assertion that, even if the district co urt was within its

discretion in striking the ten improperly notarized affidavits as

a sanction, the six remaining properly notarized affidavits raise

genuine issues of material fact regarding the racial discrimination

claim. “We need not consider issues or arguments not raised in the

appellant’s brief.” P an E. Exploration Co. v. Hufo Oils

, 855 F.2d

1106, 1124.

8 is supported by affidavit,

. . . opposing affidavits may be served

not later than 1 day before the hearing, unless the court permits

them to be served at some other time.” Although Rule 6(b) allows

a court, “in its discretion,” to extend any filing deadline “for

cause shown,” a post-deadline extension must be “upon motion made,”

and is permissible only where the failure to meet the deadline “was

the result of excusable neglect.” See Lucan v. National Wildlife

Federation

, 497 U.S. 871, 896 (1990). Here, Appellants made no

motion for extension nor any showing of “cause.” We therefore hold

that the district court did not abuse its discretion in excluding

the affidavits as untimely filed. 2

CONCLUSION

For the foregoing reasons, we reverse the district court’s

award of sanctions and affirm the grant of summary judgment to

Home Depot.