     Case: 10-10394 Document: 00511329597 Page: 1 Date Filed: 12/21/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 21, 2010
                                     No. 10-10394
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




BRUCE LEIPZIG, M.D.,

                                                   Plaintiff-Appellant
                                                   Cross-Appellee,

versus

PRINCIPAL LIFE INSURANCE COMPANY,

                                                   Defendant-Appellee
                                                   Cross-Appellant.




                    Appeal from the United States District Court
                         for the Northern District of Texas
                                  No. 6:09-CV-36




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                   No. 10-10394

      We remanded for the district court to explain its denial of attorney’s fees
to Principal Life Insurance Co. (“Principal”). Leipzig v. Principal Life Ins. Co.,
No. 10-10394, 2010 U.S. App. LEXIS 24396, at *18 (5th Cir. Nov. 29, 2010). In
its prompt response, the court explained that it “could not make a determination
of the reasonableness or necessity of Principal’s attorney fees” because “no
amount was requested, much less supported by affidavits” at the time of sum-
mary judgment. Leipzig v. Principal Life Ins. Co., No. 6:09-CV-36, slip op. at 2
(N.D. Tex. Nov. 30, 2010). Principal’s summary judgment brief and reply brief
to the district court, however, both stated that it intended to seek attorney’s fees
through a post-judgment motion. Appellant’s Br. 49; R. 337, 839 n.31. And in
response to Principal’s summary judgment motion, plaintiff Bruce Leipzig
agreed that attorney’s fees should be addressed post-judgment. Appellant’s Br.
49; R. 543.
      The district court reasoned that it “was not bound by the parties’ agree-
ment” and therefore could sua sponte deny attorney’s fees at the summary judg-
ment stage, because the parties had not submitted the materials required for it
to consider whether to grant the fees. Leipzig, No. 6:09-CV-36, slip op. at 2. Al-
though ERISA gives the district court discretion to award reasonable attorney’s
fees, 29 U.S.C. § 1132(g)(1) (2006), we review its decision for abuse of discretion.
Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1458 (5th Cir. 1995) (White, J.). Motions
for fees under ERISA are subject to the time limits set forth in Federal Rule of
Civil Procedure 54. See Jones v. Cent. Bank, 161 F.3d 311, 312 (5th Cir. 1998).
Rule 54(d)(2)(B) says, “Unless a statute or a court order provides otherwise, the
motion [for attorney’s fees] must: (i) be filed no later than 14 days after the entry
of judgment . . . .” The motion must “specify the judgment . . . entitling the mov-
ant to the award,” id., suggesting that an attorney’s fee motion would normally




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                                       No. 10-10394

be filed after the entry of judgment so that the judgment could be specified.1
       The district court points to no order that required the parties to file their
motions for attorney’s fees before a decision on summary judgment. The district
judge’s own motion practice rules do not specify when fee motions must be
made.2 If anything, those rules suggest that such motions are not due at the
summary judgment stage, because motions for summary judgment and fee appli-
cations are addressed in different subsections (II.A.1 and II.A.4.b, respectively).
Id. It was an abuse of discretion for the district court to deny attorney’s fees for
failure to file the required materials where no statute or court order gave notice
that the motions for fees were due earlier than rule 54(d)(2)(B)(i) requires.3
       The district court also noted that, in any event, it appropriately denied
fees at the summary judgment stage because Principal did not subsequently file
a post-judgment motion for fees. Leipzig, No. 6:09-CV-36, slip op. at 2. That is
error that amounts to abuse of discretion: The reason Principal did not file a
post-judgment motion is that fees had already been denied.                     We therefore
REVERSE the denial of attorney’s fees and REMAND for further proceedings
as needed.




       1
         Whether, and if so, in what circumstances, a pre-judgment motion would be proper
is not at issue here.
       2
          See Sam R. Cummings, Requirements for District Judge Sam R. Cummings, available
at http://www.txnd.uscourts.gov/judges/scummings_req.html (last visited Dec. 3, 2010).
       3
        Cf. Pierce v. Barnhart, 440 F.3d 657, 664 (5th Cir. 2006) (holding that district court
abused its discretion because it did not impose a cut-off date on the plaintiffs to refile their
premature attorney’s fees applications and then dismissed those applications as untimely).

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