Bosch v. Crestar Bank

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit July 3, 2003
Charles R. Fulbruge III
Clerk
No. 03-20070
Summary Calendar
YIGAL BOSCH, on behalf of himself
and all others similarly situated,
Plaintiff - Counter Defendant - Appellant,
VERSUS
CRESTAR BANK, and its successor in interest Fleet Bank;
FLEET CREDIT CARD SERVICES,
Defendant - Counter Claimants - Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(H-99-4071)
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Yigal Bosch pro se appeals the district court award of $17,126
in attorney fees and $126 in costs to Crestar Bank, its successor
in interest, Fleet Bank, and Fleet Credit Card Services, LP
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
(“Defendants”) upon remand from this Court. We AFFIRM.
Bosch holds a credit card issued by Crestar. After Fleet Bank
acquired his account from Crestar, Bosch was notified that various
terms applying to his credit card had been changed. The cardholder
agreement authorized the changes. In November 1999, he sued the
Defendants for breach of the cardholder agreement, for breach of
statutory obligations, and for various fraud-related torts. The
district court granted summary judgment for the Defendants. Bosch
appealed, despite the district court’s warning that he not pursue
a frivolous appeal. In an opinion issued on January 9, 2002, this
Court found on the merits that summary judgment was properly
granted.1 We further concluded that Bosch’s appeal was frivolous
and granted the Defendants’ motion for damages and costs under Rule
38 of the Federal Rules of Appellate Procedure.
On January 22, 2002, the Defendants filed a bill of costs in
the amount of $126 pursuant to Rule 39. After the mandate issued
on February 22, 2002, the case was returned to the district court
for the determination of costs, expenses, and attorney fees. On
April 2, 2002, the district court advised the Defendants that the
fee issue would be handled by written motion. The Defendants filed
a motion for attorney fees on May 17, 2002. They sought $18,181 in
fees and $501.39 in costs, in addition to the $126 previously
requested. The district court found that the Defendants’ request
1
Bosch v. Crestar Bank, No. 01-20533 (5th Cir. Jan. 9, 2002).
2
for attorney fees was reasonable and within the range of prevailing
rates in the community. Although it rejected the request for the
additional $501.39 in costs as untimely under Rule 39, the court
awarded $17,126 in attorney fees and $126 in costs.2 Bosch now
appeals.
Apparently inspired by the district court’s rejection of the
additional $501.39 in costs as untimely under Rule 39, Bosch
contends that the Defendants’ “motion for judgment for appellate
expenses, fees and costs” was itself untimely. This argument is
meritless. No rule addresses the time limit for filing an
itemization of attorney fees already granted under Rule 38. The
sole purpose of our remand of this matter was to determine “the
amount” of attorney fees we had just granted. To the point, we
imposed no time limit on the calculation of this amount.3
2
The Defendants do not contest the award.
3
Bosch’s reliance on Knoblauch v. Commissioner of Internal
Revenue, 752 F.2d 125 (5th Cir. 1985), and Sims v. Great-West Life
Assurance Co., 941 F.2d 368 (5th Cir. 1991), is misplaced. In our
decision on the merits in Knoblauch, we awarded the Commissioner
double costs and damages, including attorney fees, under Rule 38.
We instructed the Commissioner to request his damages “by ‘timely’
petition for rehearing.” Id. at 127. This instruction, we
explained, gave him only fourteen days in which to make his request
for damages. In Sims, we extended Knoblauch to require that an
initial request for damages under Rule 38 must be made within
fourteen days of judgment through a petition for rehearing. The
present case is unlike Knoblauch in that here we imposed no time
limit on the Defendants’ itemization of attorney fees. It is
unlike Sims in that here the Defendants made their initial request
for Rule 38 damages before the entry of our opinion on the merits,
which included the award of Rule 38 attorney fees. Furthermore,
the Sims petition-for-rehearing requirement is simply not
applicable here, where we remanded to the district court for the
3
We also reject Bosch’s assertion that the attorney fees awarded
were unreasonable. Bosch altogether fails to show how the district
court’s thorough and well-reasoned analysis was undermined by either
factual or legal error. Because we find no abuse of discretion in
the district court’s award of $17,126 in attorney fees and $126 in
costs,4 we AFFIRM.
AFFIRMED.
determination of the amount of fees.
4
Jason D.W. v. Houston I.S.D., 158 F.3d 205, 208 (5th Cir.
1998).
4