United States District Court, D. Massachusetts
MAC S. HUDSON, FARADAN IBN SALAHUDDIN, EDGAR ROCK, RAYMOND COLON, ABDUL J. LOPEZ, RALPH BROWN, EVANS MAHON and UMAR SALAHUDDIN, Plaintiffs,
LUIS S. SPENCER, CHRISTOPHER MITCHELL, BRUCE GELB, KAREN DINARDO, CHRISTINE LARKINS, LOIS RUSSO, JAILEEN HOPKINS and DALE BISSONNETTEE, Defendants.
Nathaniel M. Gorton, United States District Judge
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).
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).
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).
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).
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).
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).
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.
defendants' motion for reconsideration (Docket No. 422)
is ALLOWED but, upon such reconsideration,
the subject costs are, again, awarded to plaintiffs.