El Paso Independent School Dist. v. Richard R.

• Decision Date: 08 December 2008
• Docket Number: No. EP-07-CV-125-KC.,EP-07-CV-125-KC.
• Citation: 599 F.Supp.2d 759
• Parties: EL PASO INDEPENDENT SCHOOL DISTRICT, Plaintiff, v. RICHARD R., as next friend of R.R., et. al, Defendants. R.R., by his next friend, E.R., Plaintiffs, v. El Paso Independent School District, Defendant.
• Court: U.S. District Court — Western District of Texas

599 F.Supp.2d 759

EL PASO INDEPENDENT SCHOOL DISTRICT, Plaintiff, v. RICHARD R., as next friend of R.R., et. al, Defendants.

R.R., by his next friend, E.R., Plaintiffs, v. El Paso Independent School District, Defendant.

No. EP-07-CV-125-KC.

United States District Court, W.D. Texas, El Paso Division.

December 8, 2008.

COPYRIGHT MATERIAL OMITTED

Joe Ruben Tanguma, Walsh, Anderson, Brown, Schulze & Aldridge, PC, Irving, TX, Charles Mark Berry, Attorney at Law, El Paso, TX, for Plaintiffs.

Charles Mark Berry, Attorney at Law, Colbert N. Coldwell, Guevara, Rebe, Bumann, Coldwell & Reedman, El Paso, TX, Joe Ruben Tanguma, Walsh, Anderson, Brown, Schulze & Aldridge, PC, Irving, TX, for Defendant.

ORDER

KATHLEEN CARDONE, District Judge.

On this day, the Court considered Plaintiff R.R.'s "Motion to Alter or Amend Judgment" ("Motion to Amend") (Doc. No. 59); Plaintiff R.R.'s "Motion for Entry of Judgment" ("Motion for Entry") (Doc. No. 60); Defendant El Paso Independent School District's "Motion for Stay of Judgment and Orders, or[,] Alternatively, Motion to Approve Supersedeas Bond" ("Defendant's Motion") (Doc. No. 68); Plaintiff R.R.'s "Motion to Order Board of Trustees of the El Paso Independent School District to Comply With the Court's Order of August 22, 2008[,] and Memorandum in Support" ("Plaintiffs Response") (Doc. No. 69)¹; and Defendant El Paso Independent School District's "Reply to R.R.'s Response to Motion for Stay of Judgment and Orders, or[,] Alternatively, Motion to Approve Supersedeas Bond" ("Defendant's Reply") (Doc. No. 71). For the reasons set forth herein, Plaintiff R.R.'s Motions are GRANTED IN PART and DENIED IN PART,² and Defendant El Paso Independent School District's Motion is GRANTED.

I. BACKGROUND

On July 14, 2008 this Court entered an Order granting summary judgment for Plaintiff R.R. ("Plaintiff"). See El Paso Indep. Sch. Dist. v. Richard R., 567 F.Supp.2d 918 (W.D.Tex.2008) (Doc. No. 49). In that Order, the Court ordered Plaintiff to submit his request for attorney fees "pursuant to the applicable Local Rule of the Western District of Texas." Id. at 952 (citation omitted). On August 13, 2008, this Court's Clerk entered a judgment dismissing the instant case and all claims therein. (Doc. No. 53). On August 25, 2008, this Court entered an Order ("Attorney Fees Order") ordering Defendant El Paso Independent School District ("Defendant") to remit to Plaintiff $45,804.00 in attorney fees. (Doc. No. 57).

On August 26, 2008, Plaintiff filed his Motion to Amend, requesting that this Court amend the Clerk's judgment to reflect the Court's Attorney Fees Order, that this Court award Plaintiff attorney fees as costs, and that this Court award Plaintiff "other costs of suit." Mot. to Amend 3. Also on August 26, 2008, Plaintiff filed his Motion for Entry, which repeated the requests in Plaintiffs Motion to Amend, but added a request for post-judgment interest. Mot. for Entry 2. Plaintiff also filed a Bill of Costs, which stated that he incurred $350.00 in non-attorney fee costs. (Doc. No. 61).

On August 26, 2008, Defendant filed an Amended Notice of Appeal. (Doc. No. 63). That Notice stated, inter alia, that Defendant was appealing to the United States Court of Appeals for the Fifth Circuit from this Court's Attorney Fees Order. Id. at 2. Thereafter, on October 22, 2008, Defendant filed its Motion with this Court. See Def.'s Mot. The Motion requested that this Court stay the execution of its Attorney Fees Order pending resolution of Defendant's appeal or, alternatively, set a supersedeas bond to secure compliance with its Attorney Fees Order pending resolution of Defendant's appeal. Id. at 6. On October 29, 2008, Plaintiff filed his Response, and on October 31, 2008, Defendant filed its Reply.

II. DISCUSSION

A. Plaintiff's Motions

Plaintiff argues that this Court should amend the judgment entered by this Court's Clerk to reflect the Court's Attorney Fees Order. Mot. to Amend 3; Mot. for Entry 2. Such an amendment is discretionary. See FED.R.CIV.P. 58(a)(3) ("[A] separate document is not required for an order disposing of a motion ... for attorney's fees under Rule 54."). In this case, an amendment is unwarranted. Federal Rule of Civil Procedure 54(d)(2)(B)(i) states that, absent a statute or a court order providing otherwise, motions for attorney fees must "be filed no later than 14 days after the entry of judgment." FED. R.CIV.P. 54(d)(2)(B)(i) (emphasis added); accord W.D. TEX. LOC. R. CV-7(i). This rule plainly contemplates that such motions are to be disposed of separately from a judgment entered by a Court's Clerk. Otherwise, the Clerk's judgment would function as a placeholder, awaiting amendment in all cases where separate attorney fee motions may be filed. Accordingly, this Court will dispose of Plaintiffs Motions in this Order.

Plaintiff requests that the attorney fees previously awarded to Plaintiff be awarded as costs. Mot. to Amend 2; Mot. for Entry 3. The statute under which this Court granted those fees provides that "the court, in its discretion, may award reasonable attorneys' fees as part of the costs...." 20 U.S.C. § 1415(i)(3)(B)(i). Plaintiff does not explain how, if at all, awarding fees as costs would affect this case. Cf. Alberti v. Klevenhagen, 46 F.3d 1347, 1363 (5th Cir.1995) ("[A]n assessment of costs against the state is not prohibited by the state's Eleventh Amendment immunity.") (quoting Gary W. v. Louisiana, 601 F.2d 240, 246 (5th Cir. 1979)). Nevertheless, this Court holds that any attorney fees awarded to Plaintiff shall be treated as costs.

In his Motions, Plaintiff further requests that this Court award him other costs of suit. See Mot. for Entry at 2; Mot. to Amend 2. A prevailing party is entitled to costs of suit "[u]nless a federal statute, these rules, or a court order provides otherwise. ..." FED.R.CIV.P. 54(d)(1). Plaintiff is a prevailing party. See Richard R., 567 F.Supp.2d at 952. The statute under which the instant case was brought expressly allows for costs. See 20 U.S.C. § 1415(i)(3)(B)(i). Plaintiff has also submitted to the Court a Bill of Costs, and Defendant has not contested this Bill. See Knighton v. Watkins, 616 F.2d 795, 798 (5th Cir.1980) ("there is no jurisdictional time limit on the filing of a motion seeking [costs]").³ Accordingly, Plaintiff is entitled to non-attorney fee costs in the amount of $350.00.

Finally, Plaintiff requests that this Court grant Plaintiff interest on his attorney fees and on his other costs. See Mot. for Entry at 2. Plaintiff is entitled to interest on both.⁴ "If attorneys' fees are a part of costs, they will bear interest as costs." Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542, 544 (5th Cir.1983) (en banc). Because Plaintiff is entitled to non-attorney fee costs as a matter of course, interest on those costs is to run from the date of this Court's Order granting summary judgment for Plaintiff. See id., at 544-45. However, because attorney fees are discretionary under the underlying statute, see 20 U.S.C. § 1415(i)(3)(B)(i), and were not granted until this Court's Attorney Fees Order, interest on Plaintiffs attorney fee costs will run from the date of that Order. See id. at 545.

B. Defendant's Motions

In its Motion, Defendant asks that this Court stay execution of its Attorney Fee Order pending final determination of Defendant's appeal, or, alternatively, that this Court set an appropriate supersedeas bond pending that determination. Def.'s Mot. 6. Nevertheless, Defendant maintains that setting such a bond is a "wasteful burden on taxpayers." Def.'s Reply 4. In his Response, Plaintiff argues that granting Defendant's Motion is incongruous with this Court's "power to enforce [its] orders." Pl.'s Resp. 4.

Defendant first argues that it is entitled to a stay of this Court's Orders without posting a bond because Defendant is so entitled under Texas law. Def.'s Mot 3-4. Defendant cites the second clause of Federal Rule of Civil Procedure 62(f), which states that "the judgment debtor is entitled to the same stay of execution the state court would give." FED.R.CIV.P. 62(f). However, Defendant fails to discuss, or even mention, the first clause, which states that state law applies to a stay of execution "[i]f a judgment is a lien on the judgment debtor's property under the law of the state where the court is located." Id.

In Texas, a lien is created when an "abstract of judgment ... is recorded and indexed ...." TEX. PROP.CODE ANN. 52.001 (Vernon 2007) (emphasis added). The Fifth Circuit has not considered whether a Texas judgment is a lien on the judgment debtor's property such that Rule 62(f) applies and state law controls stays of execution, though it has considered the issue under the laws of other states. Cf. Whitehead v. Food Max of Miss., Inc., 332 F.3d 796, 801 (5th Cir.2003) ("Nothing in the record indicates ... that the [Mississippi] judgment did not constitute a lien...."); Castillo v. Montelepre, Inc., 999 F.2d 931, 942 n. 10 (5th Cir.1993) ("In Louisiana, the filing of a judgment .... creates a `judicial mortgage.'") (citation omitted); State Bank & Trust Co. v. "D.J. Griffin" Boat, 926 F.2d 449, 450 (5th Cir.1991) ("It is not contested that in Louisiana a judgment acts as a lien upon the property of the judgment debtor.") However, two district courts have held that a Texas judgment is a lien for Rule 62(f) purposes. In Euromed, Inc. v. Gaylor, No. 3-97-CV-0322-H, 1999 WL 46224, 1999 U.S. Dist. LEXIS 783 (N.D.Tex. January 22, 1999), the court stated that, "[u]nder Texas law, a properly recorded judgment does constitute a lien on the real property of the judgment debtor." Euromed, 1999 WL 46224 at *1, 1999 U.S. Dist. LEXIS 783 at *1. And, in Umbrella Bank v. Jamison, 341 B.R. 835 (W.D.Tex.2006), the court reasoned that because the Fifth Circuit, in Castillo, held that a Louisiana judgment is a lien, and because the Texas statute is similar to the Louisiana statute, a Texas...