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

CourtCourt of Appeals for the Second Circuit

DecidedAugust 7, 2009

DocketDocket 08-4621-cv

StatusPublished

This text of 576 F.3d 128 (Lafaro v. New York Cardiothoracic Group) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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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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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.

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576 F.3d 128, 2009 U.S. App. LEXIS 17644, 2009 WL 2411681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lafaro-v-new-york-cardiothoracic-group-ca2-2009.

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