International Custom Products, Inc. v. United States , 889 F. Supp. 2d 1383 ( 2013 )

Slip Op. 13-6
UNITED STATES COURT OF INTERNATIONAL TRADE
INTERNATIONAL CUSTOM
PRODUCTS, INC.,
Plaintiff, Before: Gregory W. Carman, Judge
v. Court No. 07-00318
UNITED STATES,
Defendant.
Carman, J.: Before the Court is a motion by Defendant United States styled as
“Defendant’s Motion for Review of the Clerk’s Taxing of ICP’s [Plaintiff International
Custom Products, Inc.] Bill of Costs and Motion for a Stay [of] the Taxing of ICP’s Bill of
Costs” (“Motion for Review”). See ECF No. 261.
Briefly, the following background is relevant to Defendant’s motion. After a
bench trial, the Court entered judgment on November 20, 2012. See Slip Op. 12-140 and
Judgment, ECF No. 258. On December 4, 2012, well within the 60 day limit for
Defendant United States to appeal the judgment pursuant to Rule 4(a)(1)(B) of the
Federal Rules of Appellate Procedure, Plaintiff filed a Bill of Costs pursuant to Rule
54(d)(1) of the Rules of the United States Court Of International Trade (“USCIT”) and
the USCIT Guidelines for Bill of Costs. ECF No. 259. On December 20, 2012, the Clerk
of the Court filed an order entering ICP’s Bill of Costs. ECF No. 260. Later that day the
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United States filed the Motion for Review.
The government argues that ICP filed its Bill of Costs prematurely, citing the
official USCIT Guidelines for Bills of Costs,1 which state:
Within thirty (30) days after the expiration of the time allowed for appeal of
a final judgment, whether or not an appeal has been filed, the prevailing
party shall serve on the attorney for the adverse party and file with the clerk
of court the original and one copy of a Bill of Costs and Disbursements (Form
21), together with a certificate of service.
The government contends that this language means that “[t]he 30 day period for filling
[sic] the bill of costs does not begin until the expiration of the time allowed for appeal of
a final judgment,” and that ICP’s filing of its Bill of Costs was therefore premature.
Motion for Review at 3. The government therefore requests that the Court vacate the
Clerk’s order taxing the Bill of Costs. Id.
The government also asks that the Court issue an order staying the taxing of
Plaintiff’s Bill of Costs until the conclusion of any appeals or the expiration of the
government’s time to appeal. Id. According to the government, a stay is “required to
avoid” the “unfair result” that would occur if the Court were to permit the taxing of
ICP’s Bill of Costs prior to any appeal, since that appeal might overturn the judgment
on which the Bill of Costs is founded. Id. at 3-4.
1
The USCIT Guidelines for Bill of Costs have “the same force and effect as the
provisions of [Rule 54].” See USCIT Rule 54, Practice Comment.
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Court No. 07-00318
ICP responds that the government has misread the USCIT Guidelines for Bill of
Costs. Plaintiff’s Response to Motion for Review and Stay of Taxing of Costs (“ICP’s
Response”) at 1, ECF No. 262. According to Plaintiff, the “clear intent of the Guidelines
is to set a deadline before which a bill of costs must be filed,” and “not a window of
time within which a bill of costs must be filed.” Id. ICP contends that “nothing is going
to change between now and the expiration of the time allowed for appeal that would
impact ICP’s bill of costs.” Id. at 2.
Plaintiff states that it does not object to “an order providing that no execution
may issue on costs taxed in this matter . . . until after the expiration of the time allowed
for the Defendant to appeal [the judgment], or while an appeal of that judgment is
pending, if the Defendant appeals,” and provides a draft order to that effect. Id. at 2,
Attach.
Plaintiff’s reading of the Guidelines is correct. A party may file its Bill of Costs
pursuant to USCIT Rule 54 and the USCIT Guidelines for Bill of Costs prior to the
expiration of the period for appeals to be filed. As Plaintiff notes, neither the Rule nor
the Guidelines specifies that the filing of a Bill of Costs must await the expiration of the
period for filing of an appeal. The government appears to rely on the notion that it
would be improper to file a Bill of Costs prior to the expiration of the appeals period or,
if filed, the decision of an appeal because the judgment forming the basis for the Bill of
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Costs may be overturned by an appeal. But the language of the guidelines specifically
permits the filing of a Bill of Costs while an appeal is pending when they state that the
Bill of Costs deadline is set for 30 days after expiration of the appeals deadline,
“whether or not an appeal has been filed.” Guidelines for Bill of Costs (emphasis
added). The Rule and the Guidelines therefore must be read as explicitly contemplating
the filing of a Bill of Costs, even where the judgment on which the Bill of Costs is based
is currently under appellate review. The government’s proposed interpretation would
read the above-emphasized clause out of the Guidelines, and the clause would be
rendered a nullity if a party could not file a Bill of Costs while a case was on appeal. It
is therefore clear, as Plaintiff argues, that nothing affecting the Bill of Costs changes
between the judgment and the expiration of the time allowed for appeal requiring
Plaintiff to defer filing the Bill of Costs until after the appeals time expires.
The Court will issue a stay, however, on issuance of any execution on costs taxed
and proceedings to collect such costs until after the expiration of the time for appeal, or
during pendency of any appeal taken, since this allays Defendant’s concerns and
Plaintiff does not object.
It is therefore
ORDERED that Defendant’s Motion for Review of the Clerk’s Taxing of ICP’s
Bill of Costs and Motion for a Stay of the Taxing of ICP’s Bill of Costs is denied; and it is
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furthermore
ORDERED that issuance of any execution on costs taxed in this matter, or
proceeding taken to collect any such costs, shall be, and hereby is, stayed until after the
expiration of the time allowed for the Defendant to appeal this Court’s November 20,
2012 Judgment, or while any appeal of that Judgment is pending (should Defendant file
an appeal).
__/s/Gregory W. Carman________
Gregory W. Carman, Judge
Dated: January 10, 2013
New York, New York