United States District Court, S.D. Texas, Corpus Christi Division
ORDER ON MOTION FOR ALLOCATION OF SANCTIONS
GONZALES RAMOS UNITED STATES DISTRICT JUDGE
the Court is Thabico's Motion for Allocation of Sanctions
(D.E. 52). For the reasons set out below, the Court GRANTS
partial relief requested by the motion (D.E. 52) and GRANTS
Attorneys Michael A. Lee and Eric Fryar's Corrected
Motion to Withdraw (D.E. 36).
partial judgment. The Court entered partial final
judgment (D.E. 28), pursuant to Federal Rule of Civil
Procedure 54(b), dismissing all claims against Defendants
Kiewit Offshore Services, Ltd. and CMF Leasing Co. (jointly
Kiewit) on June 12, 2017, having found that the claims had no
merit. Plaintiff Thabico Company (Thabico) did not appeal
that judgment and the time for doing so has
passed. Fed. R. App. P. 4(a)(1).
motion for sanctions. On June 13, 2017, Kiewit filed
its motion for sanctions (D.E. 29), seeking attorneys'
fees for defending this case against Thabico. Kiewit did not
seek sanctions against Thabico's attorneys. Pursuant to
Federal Rule of Civil Procedure 54(d)(2), a claim for
attorney's fees is to be made by motion no later than
fourteen (14) days after the entry of judgment. Kiewit timely
filed its motion a day after the partial final judgment
pertaining to the claims against it and before final judgment
in the case. The adversarial proceedings on the motion were
governed by Rules 43(c) (allowing evidence on affidavits),
Rule 78 (allowing submissions on briefs), and Rule 52(a)
(providing for findings of fact and conclusions of law in
nonjury matters). Fed.R.Civ.P. 54(d)(2).
motion to withdraw. On July 11, 2017, after filing
responses to the motion for sanctions ostensibly on behalf of
Thabico, its attorneys, Michael A. Lee and Eric Fryar, sought
to withdraw from their representation of Thabico. D.E. 32,
33, 34. The corrected motion to withdraw (D.E. 36) remains
and determination of sanctions. In the meantime,
Thabico's corrected response to the sanctions motion
represented that Thabico and its representatives had supplied
sworn testimony and documentary support for the allegations
in this case, which this Court found frivolous. D.E. 33, p.
15. This was evident in the state court petition accusing
Kiewit of conversion, which was verified by Thabico's
agent. D.E. 29-1. On August 7, 2017, the Court issued its
Order Granting Sanctions (D.E. 39). The Order held that
Thabico's conduct exhibited a bad faith, vexatious,
wanton, or oppressive escalation and prolonging of frivolous
to the Court's inherent power and Federal Rule of Civil
Procedure 11, the Court granted sanctions and directed Kiewit
to submit evidence regarding attorney's fees incurred.
Upon review of that evidence (D.E. 40, 41), the Court issued
its Order Awarding Sanctions (D.E. 48) on September 26, 2017,
awarding $63, 881.09 in sanctions against Thabico,
representing 75% responsibility for the conduct triggering
the sanctions award.
to allocate. On October 9, 2017, Thabico appeared by
new counsel and filed its motion for allocation of sanctions
(D.E. 52). The motion does not seek reconsideration of the
Court's determination that sanctions are appropriate or
the Court's findings regarding the amount of sanctions
that could be awarded. Neither does Thabico's motion seek
affirmative recovery from its attorneys. The only issue
presented is whether the sanctions were properly awarded
briefing its motion, Thabico suggests that any sanctions
should have been awarded against its attorneys, Lee and
Fryar, who represented Thabico during the sanctioned conduct.
However, Kiewit's motion that triggered the sanctions
inquiry did not seek to recover against the attorneys. And
Kiewit has not sought to add any request for relief against
the attorneys at this time. As a practical matter,
Thabico's motion-if successful-can achieve only one
result: reducing or eliminating Thabico's liability for
motion to allocate was filed well within twenty-eight (28)
days of the entry of the order awarding sanctions (D.E. 48).
Thus, assuming that the order awarding sanctions constitutes
a judgment, the motion was timely under Federal Rule of Civil
Procedure 59. That Rule allows the Court to take
additional evidence and make new findings of fact and
conclusions of law. Fed.R.Civ.P. 59(a)(2). Thabico filed
affidavits with its motion. D.E. 52. Kiewit filed a response
(D.E. 55), offering no new evidence. And Thabico replied
(D.E. 56). The Court then ordered counsel Michael Lee and
Eric Fryar to file their response and they have done so,
together with their declarations and other evidence. D.E. 57,
58, 59, 61.
objects to considering Thabico's motion, first, because
it is an improper motion to reconsider. The Court disagrees.
“The court has the power and duty to order a new trial
whenever, in its judgment, this action is required in order
to prevent injustice.” 11 Charles Alan Wright, Arthur