Lafaro v. New York Cardiothoracic Group , 576 F.3d 128 ( 2009 )


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  •      08-4621-cv
    Lafaro v. New York Cardiothoracic Group
    1                     UNITED STATES COURT OF APPEALS
    2
    3                             F OR THE S ECOND C IRCUIT
    4
    5
    6
    7                              August Term, 2008
    8
    9    (Argued: March 16, 2009                       Decided: August 7, 2009)
    10
    11                           Docket No. 08-4621-cv
    12
    13
    14     R OCCO J. L AFARO, M.D., A RLEN G. F LEISHER, M.D., C ARDIAC S URGERY
    15                                 G ROUP, P.C.,
    16
    17                                                     Plaintiffs-Appellants,
    18
    19                                      –v.–
    20
    21    N EW Y ORK C ARDIOTHORACIC G ROUP, PLLC, S TEVEN L. L ANSMAN, M.D., D AVID
    22         S PIELVOGEL, M.D., W ESTCHESTER C OUNTY H EALTH C ARE C ORPORATION,
    23                            W ESTCHESTER M EDICAL C ENTER,
    24
    25                                                      Defendants-Appellees.
    26
    27
    28
    29   Before:
    30      C ALABRESI and W ESLEY, Circuit Judges, and D RONEY, District
    31                                   Judge. *
    32
    33        Plaintiffs-appellants’ itemized bill of costs submitted
    34   pursuant to Rule 39(d) of the Federal Rules of Appellate
    *
    The Honorable Christopher F. Droney, United States
    District Court for the District of Connecticut, sitting by
    designation.
    Page 1 of 3
    1   Procedure following a judgment of this Court, entered July
    2   1, 2009, that vacated and remanded a September 11, 2008
    3   order of the United States District Court for the Southern
    4   District of New York (Robinson, J.), is hereby construed as
    5   an application for costs and GRANTED.
    6
    7         GRANTED.
    8
    9
    10
    11               R ICHARD G. M ENAKER, Menaker & Herrmann, LLP, New
    12                      York, NY, for Plaintiffs-Appellants.
    13
    14               J ORDY R ABINOWITZ, Senior Associate General Counsel,
    15                      Westchester County Health Care Corporation,
    16                      Office of Legal Affairs, Valhalla, NY, for
    17                      Defendants-Appellees.
    18
    19
    20
    21   P ER C URIAM:
    22         In the appeal underlying this application for costs, we
    23   vacated the district court's order and remanded the case for
    24   further proceedings.      Lafaro v. N.Y. Cardiothoracic Group,
    25   No. 08-4621-cv, 
    2009 U.S. App. LEXIS 14283
     (2d Cir. July 1,
    26   2009).     Plaintiffs-appellants, who sought the remand,
    27   subsequently filed their itemized bill of costs, to which
    28   defendants-appellees object on the ground that, in the event
    29   of vacatur and remand, Federal Rule of Appellate Procedure
    30   39(a)(4) provides for costs only as ordered by the Court.
    31         We have previously allowed the party seeking and
    Page 2 of 3
    1   obtaining vacatur and remand to obtain costs by filing a
    2   bill of costs where not previously ordered by the court.
    3   Gierlinger v. Gleason, 
    160 F.3d 858
    , 867, 881-82 (2d Cir.
    4   1998).   However, in Gierlinger, the party against whom costs
    5   were asserted did not timely file an objection.   See 
    id.
    6   That is not the situation here.
    7       Where “a judgment is affirmed in part, reversed in
    8   part, modified, or vacated,” Fed. R. App. P. 39(a)(4), costs
    9   must be ordered before a party filing a bill of costs under
    10   Federal Rule of Appellate Procedure 39(d) is entitled to
    11   receive them.   We therefore construe plaintiffs-appellants’
    12   bill of costs as an appropriate application for costs and
    13   GRANT the motion.
    14
    Page 3 of 3
    

Document Info

Docket Number: Docket 08-4621-cv

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

Judges: Calabresi, Wesley, Droney

Filed Date: 8/7/2009

Precedential Status: Precedential

Modified Date: 11/5/2024