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Simpson v. Thomas

December 19, 2008

GARY SIMPSON, PLAINTIFF,
v.
SERGEANT THOMAS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Presently before the Court is Plaintiff's Bill of Costs by which, pursuant to Federal Rule of Appellate Procedure ("FRAP") 39(e), he seeks various costs of his successful appeal.

Plaintiff appealed to the Ninth Circuit from an unfavorable jury verdict handed down after a trial in this Court. On June 11, 2008, the Court of Appeals issued a judgment vacating that verdict and remanding the case.

The appellate court did not allocate costs, and on June 25, 2008, Plaintiff filed a Bill of Costs in this Court seeking taxation of those costs incurred on appeal.

The Court denied Plaintiff's first submission without prejudice pending issuance of the Ninth Circuit's mandate. On September 3, 2008, the appellate court issued its mandate, and Plaintiff refiled his cost bill on September 11, 2008. Because this Court finds Plaintiff's Bill of Costs to be timely, and because the Court rejects the remainder of Defendant's arguments against the taxation of costs, those costs, in the amount of $1,386, are so taxed.*fn1

ANALYSIS

I. THE TEN-DAY LIMIT PRESCRIBED BY LOCAL RULE 54-292 APPLIES TO COST BILLS FILED PURSUANT TO FRAP 39(3)

Federal Rule of Appellate Procedure 39(e) states: Costs on Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule:

(1) the preparation and transmission of the record;

(2) the reporter's transcript, if needed to determine the appeal;

(3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and

(4) the fee for filing the notice of appeal.

Defendant argues that because FRAP 39(e) does not itself mandate any filing deadlines, Eastern District Local Rule 54-292, which requires filing a cost bill within ten days of an entry of judgment, governs. Plaintiff, to the contrary, makes several arguments in support of his position that no time limit applies to a Rule 39(e) bill of costs filing.

First, according to Plaintiff, Local Rule 54-292 applies only to costs incurred and taxed in the District Court and, since no limit is prescribed in FRAP 39(e) regarding costs incurred on appeal, but taxable in the District Court, no time limit applies in the instant case. However, Plaintiff's interpretation runs contrary to the plain language of Local Rule 54-292(f)(10), which clearly states that it applies to "[c]osts ...


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