Ronald Smart v. Local 702 International Brothe

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-4088
R ONALD D. SMART, doing business
as P ASCHALL E LECTRIC,
Plaintiff-Appellant,
v.
L OCAL 702 INTERNATIONAL B ROTHERHOOD
OF E LECTRICAL W ORKERS, C HRISTOPHER
N. G RANT AND S CHUCHAT, C OOK & W ERNER,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 07 C 94—David R. Herndon, Chief Judge.
M OTION T O C OMPEL P AYMENTS O F C OSTS
JULY 22, 2009
Before R IPPLE, K ANNE and T INDER, Circuit Judges.
P ER C URIAM. This matter is before us on the plain-
tiff’s motion to compel the payments of costs. For the
reasons set forth in this opinion, we grant the motion. The
2 No. 07-4088
defendants are ordered to pay the costs previously
ordered by this court forthwith.
A.
Ronald Smart is the proprietor of a non-union company
that contracted to perform certain electrical work in the
construction of a sports complex. Mr. Smart alleged that,
subsequently, the International Brotherhood of Electrical
Workers, Local 702, coerced the owner of the sports
complex to terminate the contract by threatening to
withhold services if the owner did not employ union
workers instead of Mr. Smart. Mr. Smart alleged that he
was fired and that the owner hired a company affiliated
with the union in his stead. He brought an action in
the district court for alleged violations of the Illinois
Antitrust Act, 740 ILCS 10/3. In the same action, he also
brought a claim against the union, its law firm and one
of the firm’s attorneys for unwarranted prosecution.
Finally, he brought another claim against the law firm
and the attorney for legal malpractice. The defendants
moved to dismiss the complaint as preempted by the
National Labor Relations Act, as barred by judicial
estoppel, and as failing to state a claim upon which relief
can be granted. The district court granted the motion,
holding that the antitrust claim was preempted, and that,
with regard to the two state-law claims, Mr. Smart had
pleaded himself out of court. The district court then
awarded the defendants $762.62 in costs incurred in
the district court.
On appeal, we held that Mr. Smart’s state antitrust
claim was completely preempted, but, because the facts
No. 07-4088 3
alleged in his complaint included an allegation of second-
ary boycott activity for which relief is available under
29 U.S.C. § 187, that claim was remanded for evaluation
under the appropriate federal standard. We affirmed
the dismissal of the state-law claims. Our opinion pro-
vided that Mr. Smart may recover his costs in this court,
and, in due course, we permitted Mr. Smart’s bill of costs,
which he initially had filed, erroneously, in the district
court, to be filed instanter.
Mr. Smart was awarded $741.43 in costs incurred in
this appeal. When he attempted to collect those costs,
however, counsel for the defendants informed him
that, because the district court had awarded the
defendants $762.62 in costs incurred there, he owed the
difference of $21.19. Mr. Smart moved to compel the
payment of costs, and we called for a response from
the defendants, which has now been filed.
B.
Although they did not file a petition for rehearing to
make this argument, the defendants now contend that
Mr. Smart “is not a successful appellant.” Resp. at 5 ¶ 5. In
their view, because the judgment of the district court
was affirmed in all respects as to the law firm and the
attorney, those two defendants were prevailing parties.
The defendants also contend that the union is a prevailing
party because Mr. Smart also made an unsuccessful claim
against it for unwarranted prosecution. It is too late to
make these arguments now. In any event, we believe
that our original award of costs was a permissible exer-
cise of our discretion.
4 No. 07-4088
The defendants further submit that they have not
refused to pay the plaintiff’s costs in accordance with the
bill of costs issued by this court. They claim that they
simply asked Mr. Smart to first pay the costs to the clerk
of the district court taxed in the defendants’ favor in the
case below. The matter of costs in this court is a free-
standing obligation. It must be paid now. The matter of
costs in the district court is not a matter properly before
this court now. We point out, however, that Federal Rule
of Civil Procedure 54(d) provides that costs may be
awarded to a “prevailing” party. See Fed. R. Civ. P. 54(d).
A party prevails for purposes of Rule 54(d) when a final
judgment awards it substantial relief. See Slane v. Mariah
Boats, Inc., 164 F.3d 1065, 1068 (7th Cir. 1999) (applying
“substantial relief” standard); Zessar v. Keith, 536 F.3d
788, 796 (7th Cir. 2008) (discussing, in an analogous con-
text of an award of fees under § 1988, the need for a
judgment to be “final” in order to be considered a “pre-
vailing party”). A final judgment is one that resolves
all claims against all parties. Dale v. Lappin, 376 F.3d 652,
654 (7th Cir. 2004).
We remanded one of the claims against the defendant
union to the district court for further proceedings. In light
of this action, the district court now must revisit the
matter of costs and enter a new determination. See Furman
v. Cirrito, 782 F.2d 353, 355 (2d Cir. 1986) (“When a
district court judgment is reversed or substantially modi-
fied on appeal, any costs awarded to the previously
prevailing party are automatically vacated.”); In re Smith,
876 F.2d 524, 527 (6th Cir. 1989) (stating that “when
a judgment is reversed on appeal, any taxation of costs is
No. 07-4088 5
also automatically vacated” and citing Furman); cf. State of
Idaho Potato Comm’n v. G & T Terminal Packaging, Inc.,
425 F.3d 708, 723 (9th Cir. 2005) (observing that “we
cannot tell the extent to which our reversal of the [one]
claim might affect the district court’s prevailing party
calculus” and therefore vacating an award of costs). The
district court has the authority to enter a partial final
judgment if the court determines that there is no just
reason for delay, see Fed. R. Civ. P. 54(b), or it may
defer action until it adjudicates the remaining claim of
Mr. Smart against the union. The defendants may yet
prevail on all of their claims—and may be awarded
costs, including those in the bill of costs submitted in
December 2007—once a new final judgment is entered.
For the present, however, there is no operative bill of
costs in the district court which could be set off against
those awarded to Mr. Smart in this appeal.
Accordingly, the defendants shall pay forthwith the
costs assessed on appeal to Mr. Smart.
IT IS SO ORDERED.
7-22-09