Salahuddin v. Mici

United States District Court

District of Massachusetts

)

MAC S. HUDSON, FARADAN IBN )

SALAHUDDIN, EDGAR ROCK, RAYMOND )

COLON, ABDUL J. LOPEZ, RALPH )

BROWN, EVANS MAHON and UMAR )

SALAHUDDIN, )

)

Plaintiffs, )

) Civil Action No.

v. ) 11-12173-NMG

)

LUIS S. SPENCER, CHRISTOPHER )

MITCHELL, BRUCE GELB, KAREN )

DINARDO, CHRISTINE LARKINS, LOIS )

RUSSO, JAILEEN HOPKINS and DALE )

BISSONNETTEE, )

)

Defendants. )

)

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).

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).

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).

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