Thomas v. Wells Fargo Home Mortgage, Inc.

59 F. App'x 609

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 27, 2003
• Docket: 02-2246, 02-2292
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

In No. 02-2246, Rita Thomas and Debra Jones seek to appeal an order of the clerk of the district court awarding costs to Wells Fargo Home Mortgage, Inc. (Wells Fargo), following judgment in Wells Fargo’s favor. Pursuant to Fed.R.Civ.P. 54(d)(1), the clerk may tax costs to the prevailing party. Here, the clerk fixed costs in the amount of $21,869.16, but reduced that amount by seventy-five percent based on Thomas and Jones’s good faith and inability to pay, for a final award of $5,467.29. In No. 02-2292, Wells Fargo cross-appealed this reduction.

“On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.” Fed.R.Civ.P. 54(d)(1). This court has held that failure to make a timely motion under the rule constitutes a waiver of the right to such review. Gary v. Spires, 634 F.2d 772, 773 (4th Cir.1980). Neither party moved for review in the district court, and instead filed notices of appeal directly to this court. Therefore, they have waived their right to review in the district court, and there is no order subject to our review. 28 U.S.C. §§ 1291, 1292 (2000). We dismiss both appeals for lack of jurisdiction. We deny Wells Fargo’s motion for summary disposition as moot. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED.