Lafaro v. New York Cardiothoracic Group

Second Circuit

Lafaro v. New York Cardiothoracic Group

576 F.3d 128, 2009 U.S. App. LEXIS 17644, 2009 WL 2411681

Court of Appeals for the Second Circuit·Decided August 7, 2009·No. Docket 08-4621-cv·Published

Opinion

PER CURIAM:

In the appeal underlying this application for costs, we vacated the district court’s order and remanded the case for further proceedings. LaFaro v. N.Y. Cardiothoracic Group, No. 08-4621-CV, 2009 WL 1873649, 2009 U.S.App. LEXIS 14283 (2d Cir. July 1, 2009). Plaintiffs-appellants, who sought the remand, subsequently filed their itemized bill of costs, to which defendants-appellees object on the ground that, in the event of vacatur and remand, Federal Rule of Appellate Procedure 39(a)(4) provides for costs only as ordered by the Court.

We have previously allowed the party seeking and obtaining vacatur and remand to obtain costs by filing a bill of costs where not previously ordered by the court. Gierlinger v. Gleason, 160 F.3d 858, 867, 881-82 (2d Cir.1998). However, in Gierlinger, the party against whom costs were asserted did not timely file an objection. See id. That is not the situation here.

Where “a judgment is affirmed in part, reversed in part, modified, or vacated,” Fed. R.App. P. 39(a)(4), costs must be ordered before a party filing a bill of costs under Federal Rule of Appellate Procedure 39(d) is entitled to receive them. We therefore construe plaintiffs-appellants’ bill of costs as an appropriate application for costs and GRANT the motion.

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PER CURIAM:

In the appeal underlying this application for costs, we vacated the district court’s order and remanded the case for further proceedings. LaFaro v. N.Y. Cardiothoracic Group, No. 08-4621-CV, 2009 WL 1873649, 2009 U.S.App. LEXIS 14283 (2d Cir. July 1, 2009). Plaintiffs-appellants, who sought the remand, subsequently filed their itemized bill of costs, to which defendants-appellees object on the ground that, in the event of vacatur and remand, Federal Rule of Appellate Procedure 39(a)(4) provides for costs only as ordered by the Court.

We have previously allowed the party seeking and obtaining vacatur and remand to obtain costs by filing a bill of costs where not previously ordered by the court. Gierlinger v. Gleason, 160 F.3d 858, 867, 881-82 (2d Cir.1998). However, in Gierlinger, the party against whom costs were asserted did not timely file an objection. See id. That is not the situation here.

Where “a judgment is affirmed in part, reversed in part, modified, or vacated,” Fed. R.App. P. 39(a)(4), costs must be ordered before a party filing a bill of costs under Federal Rule of Appellate Procedure 39(d) is entitled to receive them. We therefore construe plaintiffs-appellants’ bill of costs as an appropriate application for costs and GRANT the motion.

Lafaro v. New York Cardiothoracic Group, 576 F.3d 128, 2009 U.S. App. LEXIS 17644, 2009 WL 2411681 (2d Cir. 2009).

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576 F.3d 128 (Lafaro v. New York Cardiothoracic Group) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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