Davila-Feliciano v. Puerto Rico State Insurance Fund , 683 F.3d 405 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1398
LILLIAM DAVILA-FELICIANO,
Plaintiff, Appellant,
v.
PUERTO RICO STATE INSURANCE FUND, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Boudin, Lipez and Thompson,
Circuit Judges.
Bámily López Ortiz on brief for appellant.
José Fco. Benítez-Mier and Joanna Matos Hicks on brief for
appellees.
July 3, 2012
Per Curiam. Appellant Lilliam Davila-Feliciano appeals from
an order of the District Court for the District of Puerto Rico
approving the Clerk's taxation of costs in the amount of $12,690.10
pursuant to Federal Rule of Civil Procedure 54(d)(1) and 28 U.S.C.
§ 1920. We turn first to Appellees' late presented timeliness
argument, presented for the first time in their recently filed
supplemental brief. The argument contradicts Appellees' express
disavowal in their opening brief of any timeliness and
jurisdictional challenges, and the argument falls outside the scope
of this court's order directing supplemental briefing. Regardless,
the argument also fails as a matter of substance. Davila-Feliciano
filed her notice of appeal within 30 days of the district court's
entry of the challenged order, and that is all that Federal Rule of
Appellate Procedure 4 required in this case. Appellees have cited
to no precedent to the contrary.
As for the $181.80 in copying costs and $1,425 in deposition
transcription costs taxed by the district court, we conclude that,
under the circumstances, the district court did not abuse its
discretion in approving the Clerk's taxation of those costs. See
In re San Juan Dupont Plaza Hotel Fire Litigation, 111 F.3d 220,
228 (1st Cir. 1997) (setting out standard of review).
That leaves Davila-Feliciano's challenge to the district
court's taxation of $11,083.80 for costs accrued when Appellees
commissioned the translation into English of certain written
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documents filed as exhibits to their motion for summary judgment.
We have applied plain error review because Davila-Feliciano failed
to present this categorical challenge to the district court. See
United States v. Farrell, 672 F.3d 27, 29 (1st Cir. 2012) (setting
out plain error review standard and principles regarding its
application). In Taniguchi v. Kan Pacific Saipan, Ltd., the
Supreme Court recently ruled that costs stemming from the
translation of written documents do not qualify as "compensation of
interpreters," as that term is used in 28 U.S.C. § 1920(6), and,
therefore, may not be taxed as costs against a non-prevailing
party. 132 S.Ct. 1997, 2001-07 (2012). We reject any suggestion
by Appellees to the effect that Taniguchi is not binding precedent
for purposes of this case, and, having brought that precedent to
bear on the record in this case, we conclude that Davila-Feliciano
has satisfied the plain error standard insofar as the $11,083.80 in
translation costs are concerned. In so ruling, we, of course, do
not mean to disparage the district court for complying with what,
at the time of its ruling, was a somewhat standard practice that
did not conflict with Supreme Court precedent, but our "plain
error" review requires us to consider the state of the law at
present, which, in this case, requires application of Taniguchi.
See Farrell, 672 F.3d at 36 (describing proper vantage point for
purposes of plain error review).
In light of the foregoing, we AFFIRM the portion of the
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district court's order approving the taxation of $181.80 in copying
costs and $1,425 in deposition transcription costs, VACATE the
portion of the order approving the taxation of $11,083.80 in costs
stemming from the translation of written documents, and REMAND for
further proceedings consistent with this judgment.
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