Williams v. City of Tulsa ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 8, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
VA N W ILLIAM S; M ICH AEL
STO CK TO N ; D A RR ELL D .
YO UN GB LOO D; ALO NZO
ED W A RD S; R IC HA RD M O Y A; RON
HAY ES; DON NIE J. CAESAR; No. 06-5046
JEREM IAH FIELDS; ROBERT (D.C. No. 04-CV-326-HDC-SAJ)
W A L LER ; JA CK D IA M O N D , (N.D. Okla.)
Plaintiffs-Appellants,
v.
C ITY O F TU LSA , O K LA H O M A;
BILL FALL-LEAF; ERIC
M URDOCK; DEBRA CARR; M ARK
RO GERS; JOE H ARR IS,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before T YM KOV IC H, A ND ER SO N, and BALDOCK , Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Plaintiffs appeal the district court’s award of costs to defendants, as
authorized by 28 U.S.C. § 1920. W e exercise jurisdiction under 28 U.S.C. § 1291and affirm.
Background
The district court granted summary judgment to defendants on
September 30, 2005, a ruling plaintiffs have not appealed. Rule 54.1(a) of the
Oklahoma Local Rules of Federal Procedure provides that a bill of costs is to be
filed within fourteen days after the judgment, but defendants did not file theirs
until November 2, 2005, nineteen days after the deadline. The district court
determined that permitting the bill of costs out of time furthered the
administration of justice under LCvR 1.2(c), and allowed the late filing. The
district court received and considered plaintiffs’ objections to the bill of costs and
to the court’s decision to permit it to be filed out of time.
Plaintiffs brought this timely appeal from the order granting the bill of
costs, claiming (1) the district court abused its discretion by permitting the
untimely request for costs, (2) the timing of the bill of costs, filed when their
notice of appeal from the summary judgment was due, prejudiced their right to
appeal, (3) the district court granted the bill of costs before hearing plaintiffs’
objections, (4) costs were granted to the individual defendants, even though the
City paid their costs, (5) the district court erred in allow ing the bill of costs,
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even though it was signed by the attorney for the individual defendants and not
by the attorney for the City, and (6) the bill of costs included unauthorized
copying costs.
Discussion
Generally, “costs, other than attorneys’ fees shall be allowed as of course to
the prevailing party unless the court otherw ise directs.” Fed. R. Civ. P. 54(d)(1).
Under this rule, “the award of costs [is] presumptive.” M itchell v. City of M oore,
218 F.3d 1190, 1204 (10th Cir. 2000). “W e review the district court’s aw ard
of costs for abuse of discretion.” Brockm an v. Wyo. Dep’t of Family Servs.,
342 F.3d 1159, 1169 (10th Cir. 2003). W e also review for an abuse of discretion
the district court’s ruling on extending the time to file the bill of costs. Cf. Ellis
v. Univ. of Kan. M ed. Ctr., 163 F.3d 1186, 1193 (10th Cir. 1998) (reviewing
denial of extension of time under Fed. R. Civ. P. 6(b)(1)).
M ost of plaintiffs’ arguments concern the district court’s decision to allow
the bill of costs to be filed nineteen days after the time set by LCvR 54.1(a).
They contend that defendants failed to show “excusable neglect” for the late
filing, as contemplated by Fed. R. Civ. P. 6(b) and Quigley v. Rosenthal, 427 F.3d
1232, 1238 (10th Cir. 2005) (finding no abuse of discretion in refusing to
consider untimely motion “[b]ecause it is well established that inadvertence,
ignorance of the rules, and mistakes construing the rules do not constitute
excusable neglect for purposes of Rule 6(b).”). Here, however, the district court
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ruled that LCvR 1.2(c) governed the request for an extension of the deadline
imposed by another local rule, LCvR 54.1(a). W e agree. Rule 6(b) applies to
acts required by the Federal Rules of Civil Procedure. Those rules do not specify
a time limit to file a bill of costs. Quigley is inapposite; it addressed a motion for
attorney fees, not a bill of costs. 427 F.3d at 1233. Accordingly, we conclude
that the district court did not abuse its discretion by granting defendants’ request
to file their bill of costs out of time.
Plaintiffs next contend that permitting the late bill of costs prejudiced
their decision about whether to appeal the judgment because their notice of
appeal w as due at approximately the same time the bill of costs was filed. See
Fed. R. App. P. 4(a)(1)(A) (notice of appeal due thirty days after judgment).
They did not seek to extend the time to file their notice of appeal as authorized by
Rule 4(a)(5)(A); they assert that they were foreclosed from requesting an
extension by Bishop v. Corsentino, 371 F.3d 1203, 1207 (10th Cir. 2004). In
Bishop, this court affirmed the district court’s denial of an extension of time to
file a notice of appeal because counsel’s reasons for seeking an extension – to
review the record, consult with his client, and confer with outside counsel – were
within his control. Id. Here, defendants’ filing of a late bill of costs, an action
beyond plaintiffs’ control, may have been grounds for an extension, but we do
not address this issue since plaintiffs did not request an extension from the
district court.
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Plaintiffs’ claim that the bill of costs was granted before they had an
opportunity to oppose it overlooks the fact that the district court entertained and
considered their objections. W e also find no error in the district court’s
consideration of a bill of costs signed by counsel for the individual defendants,
rather than the City defendant, even where only the City had paid costs. The
court found the defense attorneys’ signatures sufficient under the Oklahoma
CM /ECF A dministrative Guide of Policies and Procedures, § III(C)(2), and
plaintiffs have made no attempt to explain that this ruling was in error.
Accordingly, we find no abuse of discretion in permitting the late filing of the bill
of costs.
Finally, we address plaintiffs’ claim that the district court abused its
discretion by granting certain copying costs, which they assert were made solely
for defendants’ convenience and not for filing with the court. That documents
were not filed w ith the court is not alone grounds to disallow a cost otherwise
authorized by § 1920. See Callicrate v. Farmland Indus., Inc., 139 F.3d 1336,
1339 (10th Cir. 1998) (holding that costs for documents not used at trial can be
recovered if they were nevertheless necessary). M oreover, defendants have not
identified the documents to which they object. Therefore, it was not an abuse of
discretion to grant the copying costs.
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The judgment of the district court is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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