              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT


                           No. 99-20219
                         Summary Calendar


WILLIAM L ROSE; ET AL,

                                        Plaintiffs,

WILLIAM L ROSE; ANNETTE ROSE; MARK GABRO,
Individually and on behalf of all others
similarly situated; CATHY GABRO, Individually
and on behalf of all others similarly situated,

                                        Plaintiffs-Counter
                                        Defendants- Appellants,
v.

FIRST COLONY COMMUNITY SERVICES
ASSOCIATION, INC; ET AL,

                                        Defendants,

SUGARLAND PROPERTIES INC,

                                        Defendant-Counter
                                        Claimant–Appellee,
v.

PERCY L ISGITT,

                                        Defendant-Appellant.


WILLIAM L ROSE; ANNETTE ROSE; MARK GABRO;
CATHY GABRO, Individually and on behalf
of all others similarly situated,

                                        Plaintiffs - Appellants,
v.

FIRST COLONY COMMUNITY SERVICES
ASSOCIATION INC; ET AL,

                                        Defendants,


SUGARLAND PROPERTIES INC.,
                                        Defendant - Appellee.
                    _________________________
           Appeal from the United States District Court
                for the Southern District of Texas
                          (H-97-CV-2097)


                            October 22, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:*

     William Rose, Annette Rose, Mark Gabro and Cathy Gabro appeal

the district court’s award of sanctions for filing a motion for

protective order.      Because we find that the district court did not

follow the requirements of Fed.R.Civ.P. 37(a)(4)(B), and because it

appears that incorrect individuals were named in the sanctions

order, we reverse and remand.

     The   sanctions    resulted   from       the     filing   of    a    motion   for

protective order.       After the court had decided the underlying

dispute in favor of First Colony, First Colony sought to take a

post-judgment   deposition      regarding       its     bill    of   costs.        The

plaintiffs, who included William Rose, Annette Rose, Woodrow W.

Miller, Michelle Speetzen and William J. Russell, filed a motion

for a protective order staying the deposition.                 First Colony filed

a response brief, including a request for sanctions.                     The district

court denied the motion and sanctioned the plaintiffs $500.

     Fed.R.Civ.P.      26(a),   which       governs    motions      for   protective

orders, makes Rule 37(a)(4) applicable regarding the award of

expenses incurred in relation to such motions.                   See Fed.R.Civ.P.


     *
        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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26(a). When a court denies a motion for protective order, the Rule

calls for an award of the opposing party’s expenses unless the

motion was substantially justified or unless sanctions would be

otherwise unfair.

     Before   expenses   are   awarded,    however,      the   party   to   be

sanctioned must have an opportunity to be heard.          Rule 37(a)(4)(B)

states:

     If the motion is denied, the court . . . shall, after
     affording an opportunity to be heard, require the moving
     party or the attorney filing the motion or both of them
     to pay to the party or deponent who opposed the motion
     the reasonable expenses incurred in opposing the motion,
     including attorney’s fees, unless the court finds that
     the making of the motion was substantially justified or
     that other circumstances make an award of expenses
     unjust.
     Fed.R.Civ.P. 37(a)(4)(B) (emphasis added).

An oral hearing is not required.          The Advisory Committee Notes

state that the court may consider awards of expenses either on

written submissions or in an oral hearing.         See Fed.R.Civ.P. 37(a)

advisory committee’s note (1993). In this case, while the district

court had ample authority to award expenses, it should have done so

only after allowing the parties to file papers or have a hearing.

     Further, the sanctioning order appears to name two non-

parties.   Almost a year before the plaintiffs filed the motion at

issue, Mark Gabro and Cathy Gabro were dismissed with prejudice

from the action, and Miller, Speetzen and Russell were added as

plaintiffs.    The   sanctions   order,    which   was    prepared     by   the

defendants, had an incorrect caption and named the Gabros rather

than Miller, Speetzen and Russell as plaintiffs to be sanctioned.

The district court probably simply did not notice that the wrong

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plaintiffs were named.     In any case, it would have been an abuse of

discretion   for   the   district   court   to   sanction   parties   for a

frivolous filing when they had long since left the litigation

arena.

     We remand to the district court for consideration of an award

of expenses compliant with Fed.R.Civ.P. 37(a)(4)(B).          REVERSED AND

REMANDED.




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