Rechberger et al v. Hurlburt et al

Filing 92

ORDER denying defendant's bill of costs. Signed by Hon. Richard J. Arcara on 4/12/2010. (JMB)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

E D W A R D H. RECHBERGER, IV, as Trustee under a Trust Agreement dated March 11, 1998, and as Amended February 26, 2001, L E W IS J. SERVENTI, and K A R E N K. RECHBERGER, Plaintiffs, v. D U S T IN C. HURLBURT, L IS A HURLBURT, H U R L B U R T INVESTMENT CLUB, and R O B E R T M. BURT, D e fe n d a n ts .

D E C IS IO N AND ORDER 0 7 -C V -6 1 A

O n March 24, 2010, defendant Robert M. Burt ("defendant") filed a bill of c o s ts seeking costs in the amount of $1,837.40. Defendant's proposed costs in c lu d e the filing fee that he paid when he removed the case to this Court, along w ith fees for deposition transcripts and duplication of documents. Defendant c la im s entitlement to these costs pursuant to 28 U.S.C. § 1920, which in turn fo llo w s the general authorization, though not requirement, of "just costs" under 28 U .S .C . § 1919. In opposition to paying defendant any costs, plaintiffs note that d e fe n d a n t was the party to invoke the Court's jurisdiction, and that the case was re m a n d e d to state court based on an argument that defendant would not even h a ve mentioned without sua sponte prompting from the magistrate judge.

"W h e n e ve r any action or suit is dismissed in any district court . . . for want o f jurisdiction, such court may order the payment of just costs." 28 U.S.C. § 1919. "The word `justice' is an elongation of the word `just.' `Justice' and `fa irn e s s ' have a close kinship. Thus, the sole question before the court in this c a s e can be restated simply as `W h a t is fair here?'" Ericsson GE Mobile C o m m c 'n s , Inc. v. Motorola Commc'ns & Elecs., Inc., 179 F.R.D. 328, 331 (N.D. A la . 1998). Here, defendant was the party who initiated removal from state court to this Court. Defendant's subsequent motion for summary judgment did not a d d re s s the issue of predicate acts that Magistrate Judge Foschio brought to the p a rtie s ' attention and that ultimately was the sole basis for dismissing plaintiffs' c ivil RICO claims and for remanding the case to state court. All of defendant's filin g s and motion practice, therefore, left him right where he was prior to removal, a lb e it with fewer claims against him. Defendant could have achieved the same re s u lt, and spared himself a filing fee, by making a motion to dismiss the civil R IC O claims in state court. See, e.g., Tafflin v. Levitt, 493 U.S. 455, 461­62 (1 9 9 0 ) (holding that state courts have concurrent jurisdiction over civil RICO c la im s ). Additionally, defendant has made no indication that the deposition tra n s c rip ts and duplicated documents in question related only to practice before th is Court and will have no application to future proceedings in state court. Since th e s e unspecified deposition transcripts and duplicated documents almost c e rta in ly will have relevance to the remaining claims against defendant, he 2

retains the ability to pursue costs at the conclusion of all proceedings in state c o u rt. See, e.g., Callicrate v. Farmland Indus., Inc., 139 F.3d 1336, 1342 (10th C ir. 1998) ("Recovery of costs for the depositions and expenses of [defendant] in m e e tin g the merits of [plaintiff's] claims may be sought in the state court if [d e fe n d a n t] prevails there.") (citation omitted); Tankship Int'l, LLC v. El Paso M e rc h a n t Energy-Petroleum Co., No. 3:04CV753, 2006 W L 2349603, at *2 (D. C o n n . July 25, 2006) (citing Callicrate). Under these circumstances, an award of c o s ts will not advance the concerns for justice and fairness that underlie the plain la n g u a g e of Sections 1919 and 1920. C O N C L U S IO N F o r all of the foregoing reasons, the Court denies defendant's bill of costs. SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE DATED: April 12, 2010

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