TSquare Apts LLC v. AMLI/BPMT Towne Square Partnership et al
MEMORANDUM OPINION AND ORDER denying 101 Opposed MOTION to Alter Judgment (Response by AMLI Defendants due by 4/25/2017.) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
April 11, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
TSQUARE APTS LLC,
David J. Bradley, Clerk
AMLI/BPMT TOWNE SQUARE
PARTNERSHIP; AMLI RESIDENTIAL
PROPERTIES, L.P.; AMLI
RESIDENTIAL PARTNERS LLC;
AMLI MANAGEMENT COMPANY; and
PENSIOENFONDS METAAL EN
TECHNIEK (PMT) f/k/a STICHTING
BEDRIJFSPENSIOENFONDS VOOR DE
METAAL EN TECHNISCHE
BEDRIJFSTAKKEN (BPMT) ,
CIVIL ACTION NO. H-16-0873
MEMORANDUM OPINION AND ORDER
Pending before the court are the Bill of Costs of AMLI/BPMT
Towne Square Partnership; AMLI Residential Properties, L.P.;
Residential Partners LLC; and AMLI Management Company ("the AMLI
(Docket Entry No. 99); Plaintiff's Objections to AMLI
Defendants' Bill of Costs ("Plaintiff's Objections")
100); and Plaintiff's Opposed Motion to Alter or Amend the
reasons stated below,
(Docket Entry No. 101) .
Plaintiff's Motion will be denied and the
AMLI Defendants will be given leave to respond to Plaintiff's
Factual and Procedural Background
Plaintiff TSquare Apts LLC ("TSquare")
filed this diversity
action to recover alleged damages arising out of its purchase of a
jurisdictional discovery, the court concluded that Plaintiff failed
to meet its burden to show that the parties were completely diverse
and that the court therefore lacked subject-matter jurisdiction. 2
The suit was
dismissed without prejudice and costs were
On February 23,
Final Judgment entered on February 10,
the AMLI Defendants filed a Bill of
February 28, 2017, followed by its Motion on March 7, 2017.
Defendants responded to Plaintiff's Motion on March 28, 2017. 4
As a preliminary matter, the court concludes that Plaintiff's
Motion is untimely.
The Fifth Circuit has held that a motion to
allocate costs is not a motion to alter or amend judgment under
Plaintiff TSquare Apts LLC's
First Amended Complaint
("Plaintiff's Amended Complaint"), Docket Entry No. 70, p. 1.
Memorandum Opinion and Order, Docket Entry No. 97.
Final Judgment, Docket Entry No. 98.
AMLI Defendants' Response in Opposition to Plaintiff's Motion
to Alter or Amend the Judgment ("Defendants' Response") , Docket
Entry No. 102.
Rule 59(e) despite being styled as such.
Moody National Bank of
Galveston v. GE Life and Annuity Assurance Co., 383 F.3d 249, 253
The question before
in Moody was
characterized as a Rule 54(d) motion, becomes a Rule 59(e) motion
to alter or amend where the district court awarded costs as part of
Id. at 253.
The court answered in the
Applying the holding of Moody, the court
concludes that Plaintiff's Motion is actually a Rule 54(d) motion. 5
The Motion largely duplicates Plaintiff's Objections, and the only
relief sought in the Motion is for the court to reallocate costs. 6
Rule 54(d) (1) does not provide a deadline to move for costs
other than attorney's fees,
but the court's local rules provide
that "[a]n application for costs shall be made by filing a bill of
costs within 14 days of the entry of a final judgment."
"Objections to allowance of the bill, the attorney's fees, or both
must be filed within 7 days of the bill's filing."
Plaintiff's Motion was not filed within 14 days of the entry of a
final judgment or within 7 days of the AMLI Defendants' Bill of
Costs, it is untimely and will be denied.
motion's substance, and not its form, controls." Moody,
383 F.3d at 251 (citing Edwards v. City of Houston, 78 F.3d 983,
995 (5th Cir. 1996) (en bane)).
Plaintiff's Motion, Docket Entry No. 101, pp. 1, 6.
A motion for attorney's fees "must be filed no later than 14
days after the entry of judgment." Fed. R. Civ. P. 54 (d) (2) (B) (i).
In their Response, the AMLI Defendants addressed Plaintiff's
Motion but did not address Plaintiff's Objections.
Objections to support their Bill of Costs if the court deemed a
response necessary. 8
The court is authorized by 28 U.S.C.
to tax costs in this action.
Section 1919 states that "[w]henever
any action or suit is dismissed in any district court . . . , such
court may order the payment of just costs" (emphasis added) .
costs" are not delineated by the statute.
the AMLI Defendants
The court concludes that
necessary in order to
determine which costs may be justly taxed against Plaintiff.
their response the AMLI Defendants should address the relationship
of "just costs" under
1919 to the costs provided for in
whether the costs they seek are recoverable under
should address any relevant points raised in Plaintiff's Reply to
AMLI Defendants' Response in Opposition to Plaintiff's Motion to
Alter or Amend the Judgment (Docket Entry No. 103).
Conclusions and Order
Plaintiff's Opposed Motion to Alter or Amend the Judgment (Docket
Entry No. 101) is untimely.
The motion is therefore DENIED.
court further concludes that it cannot determine which costs can
Defendants' Response, Docket Entry No. 102, p. 2 n.1.
Defendants respond to Plaintiff's Objections.
The AMLI Defendants
will have 14 days from the entry of this Memorandum Opinion and
Order to respond.
SIGNED at Houston 1 Texas/ on this the 11th day of April 1 2017.
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?