The opinion
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
RICKEY WESLEY, individually and on §
behalf of all others similarly situated, §
§
Plaintiff, §
§ Civil Action No. 4:18-CV-00005
§ Judge Mazzant
v.
§
§
EXPERIAN INFORMATION SOLUTIONS,
§
INC.,
§
Defendant. §
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Experian Information Solutions, Inc.’s Motion for
Reconsideration of Order Denying Defendant’s Bill of Costs (Dkt. #76). Having considered the
motion and the relevant pleadings, the Court finds that Defendant’s motion should be DENIED.
BACKGROUND
Plaintiff Rickey Wesley was employed by Defendant Experian Information Solutions, Inc.
as a U.S.-based Information Technology (“IT”) employee. Plaintiff’s responsibilities include
troubleshooting and supporting Defendant’s global security operations. Defendant classifies
Plaintiff as hourly-paid and non-exempt from the overtime requirements of the Fair Labor
Standards Act (“FLSA”).
Because Defendant must monitor and maintain information technologies that protect
sensitive and confidential information of their clients, there are times when its employees must
answer calls for issues that arise outside of their regular work hours. Until October 2017,
Defendant maintained an On Call, Standby and Call-Back Time Policy (the “Policy”) that applied
to all US-based non-exempt employees (Dkt. #11, Exhibit C). The Policy required employees to
perform work beyond their regularly scheduled shifts and assigned tasks while on either “standby”
or “on call.” Compensation for overtime was different based on the designation. For “on call”
work, employees were assured:
Any time that you actually provide assistance—over the telephone, by logging in
to work remotely, or by reporting to work—is work time for which you will receive
your regular rate of pay or overtime pay, as appropriate.
(Dkt. #11, Exhibit C ¶ 3.1). For “standby” work, employees were assured:
If, because of critical business needs, you are required to be more immediately
available to begin work than the on-call standards, these hours would be considered
standby time and you will receive your regular or overtime rate of pay for all
standby time.
(Dkt. #11, Exhibit C ¶ 3.3). Accordingly, in contrast to receiving compensation for all “standby”
time, these employees were not compensated for all hours spent “on call.” Rather, they were only
compensated for the time spend acknowledging and responding to a call.
On February 26, 2021, the Court granted Defendant’s Motion for Summary Judgment and
dismissed Plaintiff’s action with prejudice (see Dkt. #64; see also Dkt. #65). On March 22, 2021,
Defendant filed a Bill of Costs (Dkt. #69). On April 5, 2021, Plaintiff filed objections to
Defendant’s Bill of Costs (Dkt. #73). On June 8, 2021, the Court denied Defendant’s request for
costs, reasoning that Defendant did not conform with the local rules in seeking such costs (Dkt.
#75). On July 20, 2021, Defendant filed the present motion, seeking reconsideration of the Court’s
order denying costs (Dkt. #76). On August 3, 2021, Plaintiff filed a response (Dkt. #77).
LEGAL STANDARD
A motion seeking reconsideration may be construed under Federal Rule of Civil Procedure
54(b), 59(e), or 60(b), depending on the circumstances. “The Fifth Circuit recently explained that
‘Rule 59(e) governs motions to alter or amend a final judgment,’ while ‘Rule 54(b) allows parties
to seek reconsideration of interlocutory orders and authorizes the district court to revise at any time
any order or other decision that does not end the action.’” Dolores Lozano v. Baylor Univ., No.
6:16-CV-403-RP, 2018 WL 3552351, at *1 (W.D. Tex. July 24, 2018) (quoting Austin v. Kroger
Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017)). Further, “‘[i]nterlocutory orders,’ such as grants of
partial summary judgment, ‘are not within the provisions of 60(b), but are left within the plenary
power of the court that rendered them to afford such relief from them as justice requires [pursuant
to Rule 54(b)].” McKay v. Novartis Pharm. Corp., 751 F.3d 694, 701 (5th Cir. 2014) (quoting
Zimzores v. Veterans Admin., 778 F.2d 264, 266 (5th Cir. 1985)) (citing Bon Air Hotel, Inc. v.
Time, Inc., 426 F.2d 585, 862 (5th Cir. 1970)).
A motion seeking reconsideration of “a ‘final’ judgment or order” and filed more than 28
days of the judgment or order is considered under Rule 60(b). Zimzores, 778 F.2d at 266; see
Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 n.1 (5th Cir. 2004); Milazzo v. Young, No. 6:11-
CV-350-JKG, 2012 WL 1867099, at *1 (E.D. Tex. May 21, 2012). Such a motion “‘calls into
question the correctness of a judgment.’” Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir.
2004) (quoting In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)). Here, Defendant
filed its motion forty-three days after the Court issued its opinion. Thus, the Court will consider
the motion under Rule 60(b).
Rule 60(b) provides that a court may relieve a party from a final judgment, order, or
proceeding based on the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
FED. R. CIV. P. 60(b).
ANALYSIS
Defendant asks the Court to reconsider the Court’s order denying costs (the “Order”). In
support, Defendant concedes Counsel’s neglect, but asserts the neglect is excusable. Specifically,
Defendant argues: (1) “[g]ranting [its] Motion for Reconsideration would not prejudice Plaintiffs
whatsoever”; (2) “Counsel’s failure to follow Local Rule CV-54 did not meaningfully impact the
proceedings”; (3) “Counsel’s error was due solely to ignorance of Local Rule CV-54, which has
certainly been remedied”; and (4) Defendant “acted in good faith in filing its Bill of Costs” (Dkt.
#76 at pp. 3–4).
Plaintiff simply responds that Fifth Circuit precedent precludes the Court from
reconsidering the Order under Federal Rule of Civil Procedure 60(b).
I. Federal Rule of Civil Procedure 60(b)
As an initial matter, no dispute appears to exist that any reconsideration by the Court would
invoke Federal Rule of Civil Procedure 60(b). Because Defendant filed its motion more than
twenty-eight days, but less than one year, after entry of the Order, the Court is satisfied that Rule
60(b) does, in fact, apply to Defendant’s motion for reconsideration. See FED. R. CIV. P. 60(b).1
II. Reconsideration of the Order Denying Costs
Defendant contends that Counsel’s error in not following the Court’s local rules amounts
to excusable neglect. As noted above, Rule 60(b)(1) authorizes a court to reconsider and alter an
1 Had Experian filed its motion within twenty-eight days from entry of the Order, the Court would likely look to Rule
59(e). See FED. R. CIV. P. 54(b) (providing that “[a] motion to alter or amend a judgment must be filed no later than
28 days after the entry of the judgment”).
order based upon a party’s excusable neglect. See FED. R. CIV. P. 60(b)(1). However, the Fifth
Circuit has expressly noted that “[g]ross carelessness, ignorance of the rules, or ignorance of the
law are insufficient bases for 60(b)(1) relief” because such “relief will only be afforded in ‘unique
circumstances.’” Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 357 (5th Cir. 1993)
(quoting Pryor v. U.S. Postal Serv., 769 F.2d 281, 287 (5th Cir. 1985)). Of particular relevance to
the present case, “[d]enial of a Rule 60(b) motion” is appropriate “when the proffered justification
for relief is the ‘inadvertent mistake’ of counsel.” Id. at 356–57 (quoting Williams v. Brown &
Root, Inc., 828 F.2d 325, 329 (5th Cir. 1987)). While neglect may be excused upon a proper
showing, “mistakes or negligence of counsel are insufficient for Rule 60 relief.” Doe v. Bridge
City Indep. Sch. Dist., No. 1:20-CV-113, 2020 WL 5492993, at *2 (citing Associated Marine
Equip. LLC v. Jones, 301 F. App’x 346, 349 (5th Cir. 2008)).
In accordance with the foregoing, the Court finds Defendant’s proffered reason of Counsel
error insufficient to warrant reconsideration of the Order. The Court therefore need not delve into
the factors of excusable neglect offered by Defendant.
CONCLUSION
It is therefore ORDERED that Defendant Experian Information Solutions, Inc.’s Motion
for Reconsideration of Order Denying Defendant’s Bill of Costs (Dkt. #76) is hereby DENIED.