BETA UPSILON CHI UPSILON CHAPTER AT THE UNIVERSITY OF FLORIDA v. MACHEN et al

Filing 254

ORDER DENYING 247 MOTION to Reconsider Denial of Taxation of Costs by Plaintiffs. 246 Denial of Taxation of Costs by the Clerk is AFFIRMED. Signed by CHIEF JUDGE STEPHAN P MICKLE on 12/15/2010. (jws)

-GRJ BETA UPSILON CHI UPSILON CHAPTER AT THE UNIVERSITY OF FLORIDA v. MACHEN et al

Doc. 254

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION BETA UPSILON CHI UPSILON CHAPTER AT THE UNIVERSITY OF FLORIDA, et al., Plaintiffs, vs. J. BERNARD MACHEN, et al., Defendants. __________________________________/
O R D E R DENYING MOTION FOR TAXATION OF COSTS T H IS CAUSE comes before the Court on the Plaintiffs' Motion to R e c o n s id e r the Clerk's Denial of Taxation of Costs (doc. 247) and the Defendants' R e s p o n s e in Opposition (doc. 249). On September 29, 2010, the Court dismissed th is case as moot (doc. 240) pursuant to the Mandate of the United States Court of A p p e a ls for the Eleventh Circuit (doc. 234). On November 4, 2010, the Clerk d e n ie d (doc. 246) the Plaintiffs' request for taxation of costs (doc. 241), to which th e Defendants' had responded in opposition (doc. 244). For the following re a s o n s , Plaintiffs' Motion for Reconsideration will be denied. F e d e ra l Rule of Civil Procedure 54(d)(1) provides that costs should be a llo w e d to the prevailing party, and permits a court to review the clerk's taxation of c o s ts upon a motion served within the next seven days following the clerk's action. However, Plaintiffs are not prevailing parties entitled to costs, as the Court denied P la in tiffs ' Motion for Preliminary Injunction (doc. 104), and this matter has been d is m is s e d as moot (doc. 240), with Plaintiffs obtaining no relief on the merits. See

1:07-CV-135-SPM/GRJ

Dockets.Justia.com

Morillo-Cedron v. Dist. Dir. For U.S. Citizenship & Immig. Servs., 452 F.3d 1254 (1 1 th Cir. 2006). Plaintiffs assert that they are prevailing parties in this action, b e c a u s e , after this Court's denial of the requested preliminary injunction, the E le v e n th Circuit Court of Appeals granted an injunction pending appeal. However, a fte r the Eleventh Circuit Court of Appeals dismissed the Plaintiffs' appeal for m o o tn e s s , it denied Plaintiffs' Motion to tax costs. Moreover, by separate Order (d o c . 235), the Eleventh Circuit Court of Appeals transferred this matter to this C o u rt solely for the purpose of determining an amount of attorney's fees to be a w a rd e d to Plaintiffs for work performed in the Court of Appeals on the motion for in ju n c tio n pending appeal, but otherwise denying Plaintiffs' application to the E le v e n th Circuit Court of Appeals for appellate attorney's fees and expenses. T a k e n together, the Eleventh Circuit Court of Appeals total denial of appellate c o s ts to Plaintiffs in this matter and very limited award of appellate attorney's fees b e lie the Plaintiffs' contention that the Eleventh Circuit Court of Appeals has im p lic itly endorsed Plaintiffs as prevailing parties. M o re o v e r, Plaintiffs have offered no case support for their contention that th e Eleventh Circuit's injunction pending appeal should be treated as the e q u iv a le n t of a preliminary injunction in their favor, and necessarily confer upon th e m prevailing party status. The Second Circuit Court of Appeal's decision in V a c c h io v. Ashcroft, 404 F.3d 663 (2d Cir. 2005), is inapposite. In that case, the S e c o n d Circuit Court of Appeals, while acknowledging that "the grant of a stay or in ju n c tio n pending appeal is not necessarily relief on the merits which entitles a

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plaintiff to attorney's fees," concluded that its order releasing the habeas petitioner o n bail pending appeal "involved an assessment of the merits, unquestionably m a te ria lly altered the existing legal relationship between the parties, and thus s u ffic e d to confer prevailing party status." Id. at 672, 674. In the present case, P la in tiffs have made and can make no such showing as to the Eleventh Circuit's b rie f order (doc. 151-2) granting an injunction pending appeal. Additionally, the tw o other cases1 relied on by Plaintiffs for their proposition that the injunction p e n d in g appeal entitles them to prevailing party status were both decided, after c o n s id e ra tio n of the merits before the issuance of injunctions pending appeal, in c irc u its previously recognizing the catalyst theory, more than a decade prior to B u c k h a n n o n Board & Care Home, Inc. v. W e s t Virginia Department of Health & H u m a n Resources, 532 U.S. 598 (2001), in which the Supreme Court rejected the c a ta lys t theory, and ruled that prevailing party status requires a judicially s a n c tio n e d change in the legal relationship of the parties, rather than a mere v o lu n ta ry cessation of the challenged activity and dismissal of the lawsuit as moot. A c c o rd in g ly, it is hereby ORDERED AND ADJUDGED: 1. Plaintiffs' Motion to Reconsider Taxation of Costs (doc. 247) is D E N IE D .

See Bliss v. Holm e s , 867 F.2d 256 (6th Cir. 1988); Coal. For Basic Hum a n Needs v. K in g , 691 F.2d 597 (1st Cir. 1982).
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The denial of taxation of costs by the clerk (doc. 246) is affirmed.

D O N E AND ORDERED this fifteenth day of December, 2010.

s/ Stephan P. Mickle
Stephan P. Mickle Chief United States District Judge

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