Uretek (USA), Inc. v. Ureteknologia De Mexico S.A. De C.V.

Filing 100

MEMORANDUM AND ORDER entered DENYING 97 Opposed MOTION for Attorney Fees. (Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
URETEK (USA), INC.,
Plaintiff,
VS.
URETEKNOLOGIA de MEXICO
S.A. de C.V.,
Defendant.

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CIVIL ACTION NO. H-11-3060

MEMORANDUM AND ORDER
Defendant Ureteknologia de Mexico (“UdeM”) seeks an award of attorney’s fees in
connection with its successful defense of plaintiff Uretek’s motion for new trial and appeal to the
Fifth Circuit. (Docket Entry No. 97). Uretek has responded. (Docket Entry No. 99). Based on the
pleadings, the motion and response, the record, and the relevant law, UdeM’s motion for award of
attorney’s fees is denied. The reasons are explained below.
I.

Background
On July 10, 2013, the court entered final judgment in UdeM’s favor and awarded UdeM its

reasonable attorney’s fees incurred at that point, $211,609.88. (Docket Entry No. 67). Uretek filed
a motion for new trial. (Docket Entry No. 70). UdeM opposed the motion and asked the court to
award it an additional $2,655 in fees for having to respond. The court denied the motion for new
trial, confirmed its final judgment and original award of attorney’s fees to UdeM, and did not award
UdeM the added fees associated with the motion for new trial.
Uretek appealed the court’s July 10, 2013 final judgment. UdeM did not cross-appeal. The
Fifth Circuit affirmed. UdeM did not ask the Fifth Circuit to award attorney’s fees incurred in the

appeal, and the Fifth Circuit entered judgment ordering that each party would bear its own costs.
UdeM has moved this court to award the $5,693.50 in attorney’s fees incurred in defending
against Uretek’s motion for new trial and the $36,698 incurred in responding to Uretek’s appeal to
the Fifth Circuit.
II.

Analysis
The court’s final judgment did not include the attorney’s fees Uretek sought in its response

to UdeM’s new trial motion. UdeM did not cross-appeal any aspect of the final judgment. The
current request presents no basis for the court to modify its earlier ruling.
UdeM also asks for attorney’s fees for its successful defense of Uretek’s appeal. A party
seeking fees incurred on appeal may file a motion in the appellate court. FED. R. APP. P. 39. The
court of appeals may award or reject the motion and may either determine the fees itself or remand
the matter to the district court to calculate the appropriate fee amount. See Instone Travel Tech
Marine & Offshore v. Int’l Shipping Partners, Inc., 334 F.3d 423, 433 (5th Cir. 2003) (“Now that
we have ruled in favor of Instone, the matter is ripe for adjudication. We remand in order to allow
the district court to make the initial determination and award of appellate attorney’s fees.”); Norris
v. Hartmarx Specialty Stores, Inc., 913 F.2d 253, 257 (5th Cir. 1990); Stelly v. C.I.R., 804 F.2d 868,
871 (5th Cir. 1986) (“In some cases where we have imposed sanctions, we have determined the
amount of the sanction ourselves. In other cases, . . . we have remanded the case to the district court
in order to determine the amount of attorney’s fees.” (internal citations omitted)).
UdeM neither sought nor received a fee award from the Fifth Circuit. The judgment was
affirmed; there was no remand. The Fifth Circuit’s judgment and mandate states that “IT IS

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FURTHER ORDERED that each party [is] to bear its own costs on appeal.” UdeM does not identify
any basis for this court to act, much less to change the Fifth Circuit’s judgment.
III.

Conclusion
UdeM’s motion for attorney’s fees is denied.
SIGNED on January 22, 2015, at Houston, Texas.

______________________________________
Lee H. Rosenthal
United States District Judge

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