TSquare Apts LLC v. AMLI/BPMT Towne Square Partnership et al

Filing 104

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

ENTERED
April 11, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

TSQUARE APTS LLC,
Plaintiff,

David J. Bradley, Clerk

§
§
§
§

v.

§
§

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) ,

§
§
§
§
§
§

Defendants.

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.;

AMLI

Residential Partners LLC; and AMLI Management Company ("the AMLI
Defendants")

(Docket Entry No. 99); Plaintiff's Objections to AMLI

Defendants' Bill of Costs ("Plaintiff's Objections")
No.

(Docket Entry

100); and Plaintiff's Opposed Motion to Alter or Amend the

Judgment

("Plaintiff's Motion")

reasons stated below,

(Docket Entry No. 101) .

For the

Plaintiff's Motion will be denied and the

AMLI Defendants will be given leave to respond to Plaintiff's
Objections.

I.

Factual and Procedural Background

Plaintiff TSquare Apts LLC ("TSquare")

filed this diversity

action to recover alleged damages arising out of its purchase of a
multi-family

residential

apartment

complex. 1

After

extensive

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
against

dismissed without prejudice and costs were

Plaintiff

in a

On February 23,
Costs

totaling

taxed

Final Judgment entered on February 10,

2017,

the AMLI Defendants filed a Bill of

$15, 865.20.

Plaintiff

filed

its

Objections

February 28, 2017, followed by its Motion on March 7, 2017.

on

AMLI

Defendants responded to Plaintiff's Motion on March 28, 2017. 4
II.

Analysis

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

1

Plaintiff TSquare Apts LLC's
First Amended Complaint
("Plaintiff's Amended Complaint"), Docket Entry No. 70, p. 1.
2

Memorandum Opinion and Order, Docket Entry No. 97.

3

Final Judgment, Docket Entry No. 98.

4

AMLI Defendants' Response in Opposition to Plaintiff's Motion
to Alter or Amend the Judgment ("Defendants' Response") , Docket
Entry No. 102.
-2-

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
(5th Cir.
"whether a

2004).
motion

The question before
to

allocate

costs,

the
that

court

in Moody was

would otherwise

be

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
its

final

negative.

judgment."
Id. at 253.

Id.

at

251.

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,

7

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."

LR54.2.

"Objections to allowance of the bill, the attorney's fees, or both
must be filed within 7 days of the bill's filing."

Id.

Because

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.

5

" [A]
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)).

6

Plaintiff's Motion, Docket Entry No. 101, pp. 1, 6.

7

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).
-3-

In their Response, the AMLI Defendants addressed Plaintiff's
Defendants

Motion but did not address Plaintiff's Objections.
instead

requested

an

opportunity

to

respond

to

Plaintiff's

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.

1919

§

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.
a

response

from

the AMLI Defendants

is

"Just

The court concludes that
necessary in order to

determine which costs may be justly taxed against Plaintiff.

In

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

§

§

1920,

1920,

and

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).
III.

For

the

reasons

Conclusions and Order

stated

above,

the

court

concludes

that

Plaintiff's Opposed Motion to Alter or Amend the Judgment (Docket
Entry No. 101) is untimely.

The motion is therefore DENIED.

The

court further concludes that it cannot determine which costs can
justly be

8

taxed

against

Plaintiff

unless

and

until

the

Defendants' Response, Docket Entry No. 102, p. 2 n.1.
-4-

AMLI

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.

SIM LAKE
UNITED STATES DISTRICT JUDGE

-5-