United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Defendant Copart, Inc.'s Motion to
Alter or Amend the Judgment to award Defendant Costs and
Attorneys' Fees (Dkt. #75) and Plaintiff George
Morris's Motion of Appeal of Magistrate Judge's
Verdict & Jury Trial Request (Dkt. #76). The Court,
having considered the relevant pleadings, finds each motion
George Morris is the owner of telephone number 972-XXX-XXXX,
which is registered on the federal do-not-call-list. In 2015,
Plaintiff received a number of calls to that number; these
calls formed the basis of Plaintiff's suit. Plaintiff
alleged Defendant Copart (“Copart”) violated the
Telephone Consumer Protection Act (“TCPA”) by
contacting him on his telephone number. The Court granted
Copart's motion for summary judgment on November 9, 2016,
and dismissed each of Plaintiff's claims against Copart
with prejudice (Dkt. #61). On November 28, 2016, Copart filed
its first Motion to Alter or Amend the Judgment to Award
Defendant Costs and Attorneys' Fees (“First Motion
to Alter”) (Dkt. #65); however, the Court had not yet
entered a Final Judgment. The Court denied Copart's First
Motion to Alter as moot subject to refiling after the
Court's entry of final judgment (Dkt. #73). The Final
Judgment was entered on April 20, 2017, in Copart's
favor, stating “Plaintiff George Morris take nothing on
all claims asserted against Defendant Copart. Plaintiff's
claims are hereby DISMISSED with prejudice” (Dkt. #74).
The Final Judgment did not address costs. After the Court
entered a Final Judgment, Copart filed the instant Motion to
Alter or Amend the Judgment to award Defendant Costs and
Attorneys' Fees (“Copart's Motion”) (Dkt.
#75), requesting the Court alter its Final Judgment to allow
Copart to recover its costs, including taxable costs and
attorneys' fees. Also, on May 11, 2017, Plaintiff filed
its Motion of Appeal of Magistrate Judge's Verdict &
Jury Trial Request (“Plaintiff's Motion”)
(Dkt. #76); Copart filed its Response on May 18, 2017 (Dkt.
#77). The Court first considers Copart's Motion.
moves pursuant to Federal Rule of Civil Procedure 59(e) to
seek an alteration or amendment of the Final Judgment.
Defendant argues the Court should alter or amend its Final
Judgment to allow Copart, the prevailing party, to recover
its costs-including taxable costs and attorneys' fees.
Specifically, Copart argues that, despite alerting Plaintiff
in multiple filings that it was seeking an award of costs and
attorneys' fees for defending against his claims, the
Court did not address such request for costs in the Final
Federal Rule of Civil Procedure 59(e), a party may move to
alter or amend a judgment no later than twenty-eight days
after the entry of the judgment. Fed.R.Civ.P. 59(e). A Rule
59(e) motion “calls into question the correctness of a
judgment.” Templet v. HydroChem, Inc., 367
F.3d 473, 478 (5th Cir. 2004) (quoting In re Transtexas
Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)). A motion
to alter or amend judgment may be granted on grounds
including: (1) an intervening change in controlling law; (2)
the availability of new evidence not previously available; or
(3) the need to correct a clear error of law or prevent
manifest injustice. See In re Benjamin Moore &
Co., 318 F.3d 626, 629 (5th Cir. 2002) (emphasis added).
It is “an extraordinary remedy that should be used
sparingly, ” but courts have a great deal of discretion
in ruling on a 59(e) motion. Templet, 367 F.3d at
Motion argues the Final Judgment did not address costs and
seeks an amendment expressly awarding its costs. Copart
seemingly asserts that a judgment must explicitly state costs
are awarded. However, an express award of costs is
unnecessary. In Whatley, this Court held that
“[a] natural reading of Rule 54(d) would lead one to
conclude that a judgment silent about costs is a judgment
awarding costs because the district court has not provided
otherwise.” Whatley v. AHF Fin. Servs., LLC,
No. 4:11-CV-488, 2013 WL 4771466, *3 (E.D. Tex. Sept. 5,
2013) (citing Copper Liquor, Inc. v. Adolph Coors
Co., 701 F.2d 542, 544-45 (5th Cir. 1983) (holding that,
where a judgment is silent about costs, the judgment is one
allowing costs by implication from Rule 54(d)), overruled
on other grounds by J.T. Gibbons, Inc. v. Crawford Fitting
Co., 790 F.2d 1193 (5th Cir. 1986)). Here, the judgment
was silent about costs; therefore, Copart, as the prevailing
party, was awarded costs by implication, and explicit
language awarding costs to Copart is unnecessary. See
Williams v. Target Corp., No. 4:14CV62, 2015 WL 4885237,
at *3 (E.D. Tex. Aug. 14, 2015) (Mazzant, J.) (finding
“an alteration or amendment of the judgment to
explicitly include the words . . . ‘awarded costs'
unnecessary and that the original judgment sufficiently
notified Defendant that, as the prevailing party, it was
entitled to tax costs against the Plaintiff in this
case”). Since the Final Judgment is a final judgment
awarding costs to Copart as the prevailing party pursuant to
Federal Rule 54(d), no alteration or amendment of the
judgment is necessary.
as to the entry of an award for its costs, Copart was
required to comply with Federal Rule 54(d)(1) and Local Rule
CV-54. “Rule 54(d) sets out no specific time limit for
filing a bill of costs, effectively allowing a party to wait
until after appeal.” Power-One, Inc. v. Artesyn
Techs., Inc., No. 2:05cv463, 2008 WL 4065871, at *2
(E.D. Tex. Aug. 27, 2008) (citing White v. N.H. Dep't
of Emp't Sec., 455 U.S. 445, 454 n.17 (1982) (noting
that Rule 54(d) specifies no time barrier for motions for
costs)). Eastern District of Texas Local Rule CV-54(a)
A party awarded costs by final judgment or by judgment that a
presiding judge directs be entered as final under
Fed.R.Civ.P. 54(b) must apply to the clerk for taxation of
such costs by filing a bill of costs. Unless otherwise
provided by statute or by an order of the presiding judge,
the bill of costs must be filed with the clerk and served on
any party entitled to such service no later than fourteen
days after the clerk enters the judgment on the docket.
Rule 54(b) requires a party to confer with opposing counsel
prior to filing a bill of costs to determine if there are any
areas of disagreement in an effort to submit an agreed bill
of costs. Copart has not filed or sought leave to file a bill
of costs in this case.
respect to attorneys' fees, Copart contends that it is
entitled to attorneys' fees under Federal Rule of Civil
Procedure 54(d) (Dkt. #75 at 4). However, Rule 54(d) itself
does not entitle a party to an award of attorneys' fees,
but rather requires a motion for attorneys' fees to
“specify the judgment, statute, rule, or other grounds
entitling the movant to the award.” Fed.R.Civ.P.
54(d)(2(B)(ii). The United States Supreme Court held that
“[u]nder the ‘bedrock principle known as the
“American Rule, ” ‘[e]ach litigant pays his
own attorney's fees, win or lose, unless a statute or
contract provides otherwise.'” Marx v. Gen.
Revenue Corp., 133 S.Ct. 166 (2013). Accordingly, the
Court declines to award attorneys' fees under Rule 54(d).
“Notwithstanding the American Rule, however, we have
long recognized that federal courts have inherent power to
award attorney's fees in a narrow set of circumstances,
including when a party brings an action in bad faith.”
Id. The Court notes that attorneys' fees may be
assessed against a pro se litigant under its
inherent power to award sanctions when the litigant is shown
to have pursued litigation in bad faith. Swiney v.
Texas, No. SA-06-CA-0941 FB NN, 2008 WL 2713756, at *3
(W.D. Tex. July 3, 2008). However, before a party may be
assessed fees on the basis of bad-faith litigation,
“the court must make specific findings as to the
frivolousness of the suit.” Id. at *4 (citing
Crenshaw v. Gen. Dynamics Corp., 940 F.2d 125, 129
(5th Cir. 1991)); Barcroft v. Gibbs, No.
416CV00562ALMCAN, 2017 WL 1499247, at *5 n.7 (E.D. Tex. Apr.
5, 2017), report and recommendation
adopted, No. 4:16-CV-562, 2017 WL 1498532 (E.D. Tex.
Apr. 25, 2017). As examples of bad faith, Copart's Motion
argues Plaintiff has filed “at least 30 other lawsuits
against callers he alleges to be telemarketers” and
that, here, “Plaintiff sought to hoodwink a charity
benefiting United States veterans by tricking them into
believing he would donate a vehicle to their cause, and he
then attempted to swindle a large corporation by filing a
frivolous lawsuit for calls he received in response to his
own repugnant attempt at humor” (Dkt. #75 at 3). While
it is true that Plaintiff informed “Donate That
Car” that he desired to donate a vehicle, Plaintiff
alleged he made such false representation to find out who was
responsible for making the numerous calls to his telephone
number (Dkt. #61 at 2). The Court finds an insufficient basis
for concluding that Plaintiff acted in bad faith. For these
reasons, the Court finds that Copart's Motion (Dkt. #75)
is DENIED. The Court now turns to consider Plaintiff's
Motion is entitled Motion of Appeal of Magistrate Judge's
Verdict & Jury Trial Request (Dkt. #76). Plaintiff
requests therein that the Court: (1) schedule the case for
jury trial; (2) deny Copart's Motion; or (3) schedule any
necessary hearings to discuss the merits of Copart's
Motion. To the extent Plaintiff's “Motion of
Appeal” is a motion to reconsider the Court's
judgment, such request is denied. Motions to reconsider serve
a very limited purpose: “to permit a party to correct
manifest errors of law or fact, or to present newly
discovered evidence.” Krim v. pcOrder.com,
Inc., 212 F.R.D. 329, 331 (W.D. Tex. 2002) (citations
omitted). Mere disagreement with a district court's order
does not warrant reconsideration of that order. Id.
at 332. A party should not restate, recycle, or rehash
arguments that were previously made. Id. District
court opinions “are not intended as mere first drafts,
subject to revision and reconsideration at a litigant's
pleasure.” Verdin v. Fed. Nat'l. Mortg.
Ass'n, No. 4:10-CV-590, 2012 WL 2803751, at *1 (E.D.
Tex. July 10, 2012) (citations omitted). Plaintiff's
Motion argues “Copart has yet to properly answer
discovery and has failed to disclose their [sic] contractual
relationship with V4V1” and “that upon completion
of full discovery in this matter, the facts will find the
Defendant's [sic] guilty of the charges laid out against
them [sic]” (Dkt. #76 at 1). The Court has already
considered these arguments and found them unpersuasive (Dkt.
#61 at 10). To the extent Plaintiff s Motion seeks for the
Court to deny Copart's Motion, such request is moot in
light of the Court's findings above. To the extent
Plaintiffs Motion requests a hearing on Copart's Motion,
such request is denied. Local Rule CV-7(g) of the Eastern
District of Texas states that “[a] party may in a
motion or response specifically request an oral hearing, but
the allowance of an oral hearing shall be within the sole
discretion of the judge to whom the motion is
assigned.” Eastern District of Texas Local Rule
CV-7(g). In light of the findings above, the Court concludes
that a hearing is unnecessary to resolve Copart's Motion.
For these reasons, the Court finds that Plaintiffs Motion
(Dkt. #76) is DENIED.
therefore ORDERED that Defendant Copart, Inc.'s Motion to
Alter or Amend the Judgment to award Defendant Costs and
Attorneys' Fees (Dkt. #75) is hereby DENIED.
further ORDERED that Plaintiff George Morris's Motion of
Appeal of Magistrate Judge's Verdict & Jury ...