Roberto Hung Cavalieri v. Avior Airlines C.A.

USCA11 Case: 20-11468 Date Filed: 05/16/2022 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11468
Non-Argument Calendar
____________________
ROBERTO HUNG CAVALIERI,
individually and on behalf of all others similarly situated,
SERGIO ENRIQUE ISEA,
Plaintiffs-Appellants,
versus
AVIOR AIRLINES C.A.,
a Venezuelan company,
Defendant-Appellee.
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2 Opinion of the Court 20-11468
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:17-cv-22010-FAM
____________________
Before WILSON, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
Roberto Cavalieri and Sergio Enrique Isea, the named plain-
tiffs in a putative federal class action lawsuit against Avior Airlines
C.A., a Venezuelan airline (“the Airline”), appeal the district court’s
post-judgment award of costs to the Airline and its denial of their
subsequent motion for reconsideration. Recently, we reversed the
district court’s dismissal of their second amended complaint in a
separate appeal, see Cavalieri v. Avior Airlines C.A., 25 F.4th 843,
854 (11th Cir. 2022) (per curiam), and lifted a stay we had entered
while that appeal was pending. Cavalieri and Isea have not yet filed
an initial brief, but they now move for summary reversal of the
district court’s award of costs to the Airline and for a stay of the
briefing schedule, arguing that their position is clearly correct as a
matter of law because, in light of the foregoing, the Airline is no
longer a “prevailing party” entitled to costs under Rule 54 of the
Federal Rules of Civil Procedure. The Airline has not responded
to, or opposed, this motion.
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20-11468 Opinion of the Court 3
Summary disposition is appropriate, in part, where “the po-
sition of one of the parties is clearly right as a matter of law so that
there can be no substantial question as to the outcome of the case,
or where, as is more frequently the case, the appeal is frivolous.”
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
1969). 1
We review de novo whether a litigant is a “prevailing party”
for purposes of the award of costs in a civil action. See Head v.
Medford, 62 F.3d 351, 354 (11th Cir. 1995) (per curiam) (discussing
both attorney fees and costs).
Federal Rule of Civil Procedure 54(d)(1) provides that costs,
other than attorney’s fees, “should” be awarded to a “prevailing
party” unless a “federal statute, these rules, or a court order pro-
vides otherwise.” Fed. R. Civ. P. 54(d)(1). Rule 54(d)(1) establishes
“a strong presumption that the prevailing party will be awarded
costs,” which “may not exceed” the limitations prescribed by stat-
ute. Mathews v. Crosby, 480 F.3d 1265, 1276 (11th Cir. 2007).
The “prevailing party” usually is defined as a “litigant in
whose favor judgment is rendered,” even if such favorable judg-
ment only was obtained as to a fraction of the litigant’s asserted
claims. Head, 62 F.3d at 354–55. Importantly, however, the rever-
sal of a favorable judgment qualifying a litigant as a “prevailing
1
We are bound by decisions of the former Fifth Circuit handed down before
October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
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4 Opinion of the Court 20-11468
party” renders that litigant “no longer” a prevailing party for pur-
poses of the award of costs. U.S. Steel, LLC v. Tieco, Inc., 261 F.3d
1275, 1294 (11th Cir. 2001). Therefore, under those circumstances,
an award of costs to one of the litigants must be vacated and re-
manded for further consideration by the district court. Id.Here, summary reversal is appropriate. Because of our de-
cision in the other appeal by Cavalieri and Isea, and the fact that
the district court proceedings remain ongoing on remand, the Air-
line is no longer a “prevailing party” entitled to recover costs under
Rule 54. See U.S. Steel, LLC, 261 F.3d at 1294; Cavalieri, 25 F.4th
at 854. Thus, given the limited scope of Cavalieri and Isea’s appeal,
their position is clearly correct as a matter of law, no substantial
question exists as to the outcome of the case in that respect, and
we GRANT their motion for summary reversal of the costs award
and DENY as moot their motion to stay the briefing schedule. See
Groendyke Transp., Inc., 406 F.2d at 1162. Therefore, we vacate
the district court’s award of costs in favor of the Airline.
REVERSED and VACATED.