Hudson et al v. Spencer et al

Filing 432

Judge Nathaniel M. Gorton: ORDER entered. Accordingly, defendants motion for reconsideration (Docket No. 422 ) is ALLOWED but, upon such reconsideration, the subject costs are, again, awarded to plaintiffs. So ordered. (McDonagh, Christina)

United States District Court
District of Massachusetts
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Plaintiffs,
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v.
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LUIS S. SPENCER, CHRISTOPHER
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MITCHELL, BRUCE GELB, KAREN
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DINARDO, CHRISTINE LARKINS, LOIS )
RUSSO, JAILEEN HOPKINS and DALE )
BISSONNETTEE,
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Defendants.
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MAC S. HUDSON, FARADAN IBN
SALAHUDDIN, EDGAR ROCK, RAYMOND
COLON, ABDUL J. LOPEZ, RALPH
BROWN, EVANS MAHON and UMAR
SALAHUDDIN,

Civil Action No.
11-12173-NMG

ORDER
GORTON, J.
In February, 2018, plaintiffs filed a motion for costs
(Docket No. 374) related to their partially successful appeal to
the First Circuit Court of Appeals (“the First Circuit”) of an
adverse judgment of this Court.

Plaintiff Mac Hudson (“Hudson”)

requested $542.70 for costs related to the “docket fee for
Appeals Court and postage to file briefs and appendixes (sic)”
and plaintiff Umar Salahuddin (“Salahuddin”) requested $505 for
costs related to “the docket fee for the Appeals Court”.

In

September, 2018, this Court allowed that motion by endorsement
(Docket No. 416).
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On remand from the decision of the First Circuit affirming,
in part, and vacating, in part, this Court’s prior order, this
Court again allowed defendants’ motion for summary judgment and
denied plaintiffs’ cross-motion for summary judgment (Docket No.
420).
In October, 2018, defendants filed a motion for
reconsideration of the Court’s allowance of costs to the
plaintiffs (Docket No. 422).

Defendants contend that because

plaintiffs were not ultimately the prevailing party in the
district court on remand, they are not entitled to costs
pursuant to Fed. R. Civ. P. 54.

Plaintiffs respond that, even

though they ultimately were not the prevailing party on remand,
they were successful on appeal and thus are entitled to costs
related to that appeal pursuant to Fed. R. App. P. 39(a).
The applicable appellate rules provide that
if a judgment is affirmed in part, reversed in part,
modified, or vacated, costs are taxed only as the court
orders . . . [and that] [a] party who wants costs taxed
must—within 14 days after entry of judgment—file with the
circuit clerk, with proof of service, an itemized and
verified bill of costs.
Fed. R. App. P. 39(a)(4) and (d)(1).

The fee for filing the

notice of appeal, however, is “taxable in the district court for
the benefit of the party entitled to costs”. Fed. R. App. P.
39(e).

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There is a split among the Circuit Courts of Appeal with
respect to whether the appellate court must first determine
which party, if any, is entitled to costs before those costs may
be taxed in the district court. Compare L-3 Commc’ns Corp. v.
OSI Sys., Inc., 607 F.3d 24, 29 (2d Cir. 2010) (“We read
subsection (a)(4) as requiring the appellate court to make a
determination about which party, if any, should bear costs
before costs may be taxed.”); Reeder-Simco GMC, Inc. v. Volvo GM
Heavy Truck Corp., 497 F.3d 805, 808 (8th Cir. 2007) (“When read
together, then, the provisions of subdivisions (a)(4) and (e) of
Rule 39 indicate the costs listed as taxable in the district
court are subject to the appellate court so ‘[o]rdering’ them to
be recoverable under Rule 39(a)(4) in cases where a judgment is
affirmed in part, reversed in part, modified, or vacated.”),
with Republic Tobacco Co. v. N. Atl. Trading Co., Inc., 481 F.3d
442, 449 (7th Cir. 2007) (holding that Rule 39(a)(4) permits a
district court to allocate costs where an appellate court
modifies a district court’s judgment).
Where a party is awarded costs by the appellate court
pursuant to Fed. R. App. P. 39(a)(4), however, that party is
immediately entitled to seek costs in the district court under
Fed. R. App. P. 39(e) regardless of the ultimate outcome of the
case on remand. Flythe v. District of Columbia, 317 F.R.D. 596,
598 (D.D.C. 2016).
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Here, the First Circuit did not determine whether
plaintiffs were entitled to costs as part of its decision to
affirm, in part, and vacate and remand, in part, this Court’s
prior order nor did plaintiffs file a bill of costs with the
First Circuit clerk.

Notwithstanding those omissions, this

Court is persuaded by the reasoning of the Seventh Circuit Court
of Appeals that a district court has broad discretion to
allocate costs where an appellate court modifies its judgment.
See Republic Tobacco Co., 481 F.3d at 449.

The Court concludes

that pursuant to Fed. R. App. P. 39(a)(4) and (e), plaintiffs
are entitled to recover the filing fees associated with the
docketing of their appeal, including those related to the filing
of briefs and appendices.
ORDER
Accordingly, defendants’ motion for reconsideration (Docket
No. 422) is ALLOWED but, upon such reconsideration, the subject
costs are, again, awarded to plaintiffs.

So ordered.
_/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated December 10, 2018

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