Morrow v. Baker

Decision Date15 February 2023
Docket Number21-40922
PartiesJames Morrow; Stephen Stuart Watson; Amanee Busby; Yuselff Dismukes; Linda Dorman; Marvin Pearson; Jennifer Boatwright; Ronald Henderson; Javier Flores; William Flores, Plaintiffs-Appellants, v. Michael Baker, City of Tenaha Mayor, in His Official Capacity, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

James Morrow; Stephen Stuart Watson; Amanee Busby; Yuselff Dismukes; Linda Dorman; Marvin Pearson; Jennifer Boatwright; Ronald Henderson; Javier Flores; William Flores, Plaintiffs-Appellants,

Michael Baker, City of Tenaha Mayor, in His Official Capacity, Defendant-Appellee.

No. 21-40922

United States Court of Appeals, Fifth Circuit

February 15, 2023

Appeal from the United States District Court for the Eastern District of Texas USDC No. 2:08-CV-288

Before SMITH, BARKSDALE, and HAYNES, Circuit Judges.


At issue is whether the district court erred in this settled class-action by denying the last of four interim motions for attorney's fees as untimely, based on an oral pronouncement by the court during a non-transcribed,


unrecorded status conference which purported to set a deadline to file the motion. Because this oral pronouncement was insufficient to set the deadline, we VACATE and REMAND.


This 2008 class action against various officials of the City of Tenaha and Shelby County, Texas, claimed Fourth and Fourteenth Amendment violations by law enforcement. The parties' settlement agreement included a consent decree, which required defendants to implement specific policies and follow monitoring procedures, with a court-appointed monitor to oversee defendants' compliance with those procedures. The decree's effective term of four years could be modified by the court upon motion by a party.

The decree provided defendants would pay plaintiffs' attorney's fees "as previously agreed to by the parties", which referred to a 15 June 2012 mediation proposal. Pursuant to that proposal, the parties: settled on fees already incurred; and stipulated plaintiffs' counsel anticipated future fees which "remain[ed] billable and/or subject to determination by the Court". An August 2013 order approved the consent decree.

Relying on defendants' agreement to pay attorney's fees and 42 U.S.C. § 1988 (allowing court to award attorney's fees to prevailing party in certain civil-rights proceedings), plaintiffs moved in September 2016 for those fees related to monitoring defendants' compliance with the consent decree, for 10 September 2013-31 August 2016 (first fees motion). The court granted the motion 15 November 2017, concluding plaintiffs were the "prevailing party" under § 1988.

The decree was extended in January 2019 for an additional term of 18 months, to expire around 24 July 2020. (During a July 2020 conference, discussed infra, the court and parties expressed confusion over the exact date


of the additional term's expiration. The amended settlement agreement proposing the additional term provided it would "remain in effect for eighteen (18) months from the date of entry of the [o]rder entering" the amended decree. The order approving the amended decree was entered 24 January 2019, and 18 months commencing from that date would result in the above stated 24 July 2020 expiration.).

Plaintiffs in October 2019 filed another interim motion for attorney's fees, for 1 September 2016-30 April 2019 (second fees motion). Another was filed in May 2020, for 1 May 2019-31 March 2020 (third fees motion).

A 24 June 2020 docket entry captioned "Status Conference (Hearing re Pending Motions and Consent Decree)" reflected a notice for a hearing on 21 July 2020 (the July 2020 conference). Just before that conference, plaintiffs on 17 July moved for a second additional term for the decree, with its length to be decided by the court at a later date.

During the July 2020 conference, the court stated:

Somewhere in around April of this year, I recall indicating to you in a conference in chambers that I anticipated having a hearing on any and all matters that were still alive in this case before the expiration of the current extension of the consent decree, and that if the plaintiffs intended to seek an extension of the consent decree, they needed to proceed to take all reasonable steps to do that

(Emphasis added.)

The court further stated it would "withhold ruling [on the proposed second additional term] until all [of] the [consent decree's] notice requirements . . . [had] been met and complied with".

Regarding the court's above reference to a conference in chambers "around April of this year", the docket reflects an "In Chambers Telephonic


Status Conference" was held 14 April 2020. The conference, however, was not recorded or transcribed, and no orders were entered regarding what was discussed or decided.

Approximately two months after the July 2020 conference, the court entered two orders on 15 September 2020 (the September 2020 orders): one denied the proposed second additional term; the other granted, as modified, the second and third fees motions. The order denying a second additional term referred to the July 2020 conference as the "Final Hearing" and stated "the parties [were put] on notice that any motions would need to be timely filed before the Final Hearing at least as early as the telephonic status conference held April 14, 2020". But, the order granting, as modified, the second and third fees motions referred to the July 2020 conference as a "Status Conference".

Subsequent to the July 2020 conference, plaintiffs and the county- but not the city-defendants reached a settlement on outstanding fees; on 14 October 2020 plaintiffs moved to dismiss those defendants. This motion prompted the court to schedule another status conference for 9 December 2020 (the December 2020 conference).

During the December 2020 conference, the court stated: "[t]his is a case that has run its course and has been concluded and is closed and over"; and it had "awarded fees that would be through the close of all activity in the account". The court made several other references regarding the case's being closed, but also acknowledged several times it still needed to "direct[] the clerk to close the case" and was refraining from doing so "until [the parties] put the last nail in the coffin on [the] fee issue".

Ultimately, the court did not consider it necessary to dismiss the county defendants. It viewed the class action to be "in the same posture as if the litigation [had] been reduced to a judgment and . . . the judgment [was]


being satisfied". Therefore, the court felt it would be "highly awkward, . . . if not outright inappropriate for there to be an order of dismissal entered" because there was "nothing left to dismiss". Instead, plaintiffs were directed to file a notice advising the court that county defendants were released from their fee obligations. The court stated, that, upon such filing, "between the County Defendants and the Plaintiffs, the case [would be] over with".

Plaintiffs on 17 March 2021 moved for additional attorney's fees, to be paid by the city, for 1 April 2020-31 December 2020 (fourth fees motion). Following the court's granting an extension to do so, defendants filed a response in opposition. The fourth fees motion was denied 12 April 2021 by a two-sentence order.

Plaintiffs on 15 April 2021 moved to amend that order, seeking findings of fact and conclusions of law on which the fourth fees motion was denied and otherwise continuing in general to contest the denial of that motion. The court on 24 November 2021 denied the motion to amend as moot, but in doing so, stated the fourth fees motion was untimely because "the Court put the parties on clear notice that any motion" needed to be "timely filed before" the July 2020 conference.

Plaintiffs filed a notice of appeal on 20 December 2021, from the 12 April 2021 and 24 November 2021 orders denying the fourth fees motion.


Plaintiffs claim the court violated the Federal Rules of Civil Procedure and procedural due-process by denying their fourth fees motion as untimely, without setting a deadline in a written order.


"Jurisdiction is always first." Arulnanthy v. Garland, 17 F.4th 586, 592 (5th Cir. 2021) (citation omitted). Jurisdiction vel non is, of course, a


question of law. E.g., Gulfport Energy Corp. v. FERC, 41 F.4th 667, 676 (5th Cir. 2022).

Plaintiffs' opening brief presents three grounds for our having jurisdiction. First, the ruling on their fourth fees motion is a reviewable interlocutory order under the collateral-order doctrine. Second, if the court's denying that motion finally resolved all issues regarding attorney's fees, jurisdiction exists under 28 U.S.C. § 1291. Finally, if the orders appealed from are deemed a final judgment, § 1291 likewise grants us...

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