Gillian Emery v. Frank Gallo

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1315
IN RE:
F RANK G ALLO,
Debtor-Appellee.
A PPEAL OF:
G ILLIAN A. E MERY
Appeal from the United States District Court
for the Central District of Illinois.
No. 2:07-cv-02182-MPM-DGB—Michael P. McCuskey, Chief Judge.
O N M OTION TO F ILE B ILL OF C OSTS I NSTANTER
S EPTEMBER 23, 2009 Œ
R IPPLE, Circuit Judge (in chambers). Appellee Frank Gallo
asks this court to allow his bill of costs to be filed late. The
court entered judgment in Mr. Gallo’s favor on July 20,
2009, and awarded him costs. Federal Rule of Appellate
Procedure 39(d) says, “A party who wants costs taxed
Œ
This opinion was released initially in typescript form.
2 No. 08-1315
must—within 14 days after entry of judgment—file with
the circuit clerk, with proof of service, an itemized and
verified bill of costs.” Motion at 1. Mr. Gallo’s bill of costs
was due on August 3, 2009, but he did not file his bill
of costs by that date. Instead, he filed a motion to file the
bill of costs instanter two days later, on August 5, 2009.
Federal Rule of Appellate Procedure 26(b) allows the
court to extend the time prescribed by the rules or
permit an act to be done after that time expires if a party
shows “good cause” for the delay. In Denofre v. Transporta-
tion Insurance Rating Bureau, 560 F.2d 859, 860-61 (7th Cir.
1977), this court denied a request to file a late bill of costs,
holding that the Bureau had not shown good cause to
persuade the court to exercise its discretion to allow the
late filing. The Bureau attempted to show good cause by
explaining that it had received the court’s opinion
three business days before the bill was due and that the
attorney of record was absent from the office during the
relevant time. Id. The court held that “the mere
inattendance to the daily chores in one’s law office” does
not constitute good cause. Id. at 861. It further noted
that there had been sufficient time for counsel to file a
motion for an extension of time to file the bill of costs.
Id. The opinion in Denofre was circulated to all judges
in regular active service and no judge requested that the
matter be reheard en banc. Id. at 861 n.4; see Cir. R. 40.
In his motion to file his bill of costs instanter, Mr. Gallo
explained that the bill of costs was late because he
needed “to coordinate between various members of the
appeals team to accumulate the information necessary
No. 08-1315 3
for the calculation of costs in this matter.” When this
court requested more information, he explained that
determining the amount of money spent on copies took
longer than expected because the firms composing the
appellate team are located in different towns.
Mr. Gallo’s attempt to show good cause falls short of
this court’s expectations as articulated in Denofre.
Mr. Gallo does not adequately explain why communica-
tion between team members in different locations
delayed the filing of the bill of costs beyond the 14-day
deadline. Moreover, even if communication was diffi-
cult, Mr. Gallo could have filed a motion to extend time
to file the bill of costs in which he explained the exten-
uating circumstances. Considerations of stare decisis
and the even-handed treatment of litigants requires that
this court follow circuit precedent. Accordingly,
Mr. Gallo’s request to file his bill of costs instanter
is denied.
D ENIED
10-5-09