UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KEVIN V. HUX; RODNEY LYNCH;
ANTHONY T. KELLAM-BEY,
Plaintiffs-Appellants,

v.

HYATT CORPORATION, t/a Hyatt
Regency Hotel, a Delaware
Corporation; STEVE NYSTROM,
                                                               No. 98-1715
individually and in his former
corporate capacity as Manager of
the Engineering Department; FRANK
ALAGNA, individually and in his
corporate capacity as Assistant
Manager of the Engineering
Department,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA- 97-3087-MJG)

Argued: May 7, 1999

Decided: June 25, 1999

Before MURNAGHAN and LUTTIG, Circuit Judges,
and WILLIAMS, Senior United States District Judge
for the Eastern District of Virginia,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.
COUNSEL

ARGUED: Glen Marcus Fallin, Severna Park, Maryland, for Appel-
lants. Stephen Michael Silvestri, MILES & STOCKBRIDGE, P.C.,
Baltimore, Maryland, for Appellees. ON BRIEF: Brooks R. Amiot,
MILES & STOCKBRIDGE, P.C., Baltimore, Maryland, for Appel-
lees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Kevin V. Hux, Rodney Lynch, and Anthony T. Kellam-Bey appeal
the district court's award of attorney's fees and costs under 42 U.S.C.
§ 1988 following the dismissal of their discrimination action against
Hyatt Corporation, Frank Alagna, and Steve Nystrom. Finding no
abuse of discretion, we affirm.

I.

On April 24, 1996, plaintiffs Hux, Lynch, and Kellam-Bey filed
suit against defendants Hyatt, Alagna, and Nystrom in Maryland state
court. Plaintiffs made various claims of discrimination under both
Maryland and federal law, including a claim of racial discrimination
under 42 U.S.C. § 1981. Defendants filed a timely notice of removal;
plaintiffs, through their counsel, Glen Fallin, moved for a remand.
The district court denied the motion for remand as frivolous. Defen-
dants subsequently moved for summary judgment; plaintiffs, how-
ever, failed to file a response to the motion, despite the district court's
repeated extension of the deadline to do so. On April 9, 1997, the dis-
trict court dismissed the action with prejudice for plaintiffs' failure to
file a response. Plaintiffs then appealed to this court; however, after

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plaintiffs failed to file the requisite forms or pay the filing fee, we dis-
missed the appeal for want of prosecution.

On May 12, 1997, despite the earlier dismissal with prejudice,
plaintiffs filed essentially the same action once again in Maryland
state court. Once again, plaintiffs made various claims of discrimina-
tion under both Maryland and federal law, including a claim of racial
discrimination under 42 U.S.C. § 1981:

          H. Statement of fourth claim.

          54. By discriminating against Plaintiff Kellam-Bey
          on the basis of his race, African-American, in the
          terms, conditions, and termination of his employ-
          ment, Defendants violated the Thirteenth Amend-
          ment to the United States Constitutional [sic] and
          42 U.S.C. § 1981 and therefore are liable to Plain-
          tiff Kellam-Bey for compensatory and punitive
          damages, as well as Plaintiff Kellam-Bey's reason-
          able attorney fees, pursuant to 42 U.S.C. § 1988.

J.A. at 19. Once again, defendants filed a timely notice of removal,
then moved for summary judgment. Once again, on November 19,
1997, the district court granted defendants' motion for summary judg-
ment. Once again, plaintiffs appealed to this court; once again, we
dismissed the appeal for want of prosecution.

On December 3, 1997, defendants petitioned for an award of attor-
ney's fees and costs against plaintiffs under 42 U.S.C. § 1988, seek-
ing reimbursement of their fees and costs in litigating the second
action by plaintiffs. Plaintiffs failed to respond to defendants' peti-
tion. On April 9, 1998, the district court granted defendants' petition.
From that order, plaintiffs now appeal.

II.

It is obvious that the district court did not abuse its discretion by
granting fees and costs in this action. All of plaintiffs' claims dupli-
cated the claims in the action that was previously dismissed with prej-

                     3
udice; plaintiffs presented no new legal theories, facts, or claims in
their subsequent action. Therefore, plaintiffs' second action was
patently frivolous, and, as the district court correctly noted, any fees
and costs incurred by defendants in litigating the action were "totally
unnecessary." J.A. at 123.

Plaintiffs challenge the district court's award of fees and costs on
three primary grounds, none of them meritorious. First, plaintiffs
allege that the district court lacked subject matter jurisdiction over
their second action. Plaintiffs initially claim that they made an "inad-
vertent reference" to § 1981 in their second action, and therefore that
their second action contained no federal claims. Br. of Appellants at
12. This argument, however, verges on the frivolous; far from a mere
typographical slip, plaintiffs asserted their § 1981 claim fully and
completely in their second complaint. See supra at 4. Further, once
defendants removed the second action to federal court, plaintiffs took
no steps to dismiss the federal claim, thus belying their assertion that
the inclusion of the claim was "inadvertent." Plaintiffs additionally
assert that, even if their complaint did contain a§ 1981 claim, it was
insufficient to confer subject matter jurisdiction over the second
action because any § 1981 claim would have been time-barred. This
argument likewise fails, because the fact that the statute of limitations
may have expired on the § 1981 claim is a defense to the claim --
which defendants may waive -- and not a jurisdictional defect. See,
e.g., Fed. R. Civ. P. 8(c). Because plaintiffs evidently asserted a fed-
eral claim within the four corners of their complaint in the second
action, the district court evidently had jurisdiction over that action on
removal.

Second, plaintiffs allege that defendants improperly served their
petition for fees and costs on Fallin, rather than on them directly. Spe-
cifically, plaintiffs claim that such service was improper because Fal-
lin was not able to practice before the district court, apparently
because he had not been admitted to the district court's bar. Plaintiffs'
argument, however, fails because plaintiffs do not claim that they
lacked notice of the petition. Although Fallin may not have been able
to practice before the district court, he has remained plaintiffs' attor-
ney throughout this action. Indeed, far from acting improperly, defen-
dants were obligated to serve the petition for fees and costs on Fallin
under Federal Rule of Civil Procedure 5(b), which requires service for

                     4
a "party represented by an attorney" to be made upon the attorney,
and not the party. In any event, because plaintiffs do not claim they
lacked notice of the petition, their claim of improper notice is facially
deficient.

Third, plaintiffs contend that the district court should have ordered
them to respond to defendants' petition for fees and costs before
granting it. Plaintiffs base their claim on the district court's Local
Rule 105.8.b, which bars the district court from granting a motion for
sanctions under Rule 11 or 28 U.S.C. § 1927 without first requesting
a response to the motion. This rule, however, plainly does not apply
to petitions for fees and costs under 42 U.S.C.§ 1988, which itself
contains no requirement that a court request a response before ruling
on a petition for fees and costs. Further, plaintiffs had ample opportu-
nity to respond to the petition -- indeed, over four months -- but, as
was their wont throughout this litigation, failed to do so. Their claim
that the district court should have ordered them to do so before award-
ing fees and costs is thus meritless.

Plaintiffs make a number of other claims; having considered them
carefully, we hereby reject them. The judgment of the district court
is affirmed.

AFFIRMED

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