By Order dated July 27, 2009, this Court reversed the district court's denial of Appellants' motion for summary judgment and entered judgment in Appellants' favor. Appellants, as the prevailing parties, now move for an award of costs pursuant to Fed. R. App. P. 39. For the reasons set forth below, we deny that motion, and we clarify that, while an award of costs to a prevailing party pursuant to Rule 39 is customary, this Court retains discretion to deny costs when, in the exercise of its discretion, it determines taxation is not appropriate.
Motion Decided November 2, 2009
Before CABRANES and HALL, Circuit Judges, and STEIN, District Judge.*fn1
Defendants-cross-claimants-appellants Joseph A. Andreno, Kurt R. Palmer, and the County of Delaware (collectively, "appellants"), as prevailing parties before this Court, see Moore v. Andreno, 08-2426-cv, 2009 U.S. App. LEXIS 16452 (2d Cir. July 27, 2009), now move to recover costs incurred in litigating their appeal. See Fed. R. App. P. 39. Plaintiff-appellee Richard B. Moore has filed objections to that motion, contending principally that costs should not be imposed because Moore is "nearly destitute."
Because we find that equitable considerations militate against taxing costs against Moore, we deny appellants' motion. We write briefly to clarify that, while an award of costs to a prevailing party pursuant to Rule 39 is a customary and often routine procedure, this Court retains discretion to deny costs when, in the exercise of its discretion, it determines taxation is not appropriate.
While the full factual and procedural history of this action has been comprehensively detailed by two panels of this Court, Moore v. Andreno, 505 F.3d 203, 205-07 (2d Cir. 2007); Moore, 2009 U.S. App. LEXIS 16452, at *1-7, we revisit that history here only insofar as it is relevant to the instant motion.
This action stems from a warrantless search of Moore's personal study conducted by appellants Andreno and Palmer, both Delaware County Deputy Sheriffs, in April 2002. That search uncovered evidence of drugs and drug paraphernalia which lead to Moore's indictment on several counts of possession of a controlled substance. Moore, 505 F.3d at 205-06. A state court subsequently suppressed that evidence and dismissed the indictment. Id. at 206-07.
Moore then initiated this action asserting claims pursuant to 42 U.S.C. §§ 1981, 1983, 1985 and state law. Appellants moved for summary judgment in their favor, contending that even if Moore's constitutional rights had been violated by the search, the Deputy Sheriffs were entitled to qualified immunity. The United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge) denied that motion, but a panel of this Court reversed, finding that while appellants' search violated Moore's constitutional rights, those rights were not clearly established at the time of the violation. Id. at 214-16.
On remand, however, rather than entering judgment in appellants' favor, the district court entertained a new theory of Moore's case involving a different constitutional violation, one that Moore contended was clearly established at the time of the search. Appellants again moved for summary judgment, the district court again denied that motion, and this Court again reversed, finding that appellants were entitled to qualified immunity and the entry of judgment in their favor. Moore, 2009 U.S. App. LEXIS 16452, at *10.
Appellants now move to recover taxable costs pursuant to Rule 39 as the prevailing parties and have submitted a verified bill of costs to the Clerk of Court seeking reimbursement in the amount of $2,572.18. Moore filed timely objections to that bill of costs, see Fed. R. App. P. 39(d)(2) , arguing that taxation would be unduly burdensome given his limited financial resources. Alternatively, Moore argues that an award of costs to appellants would improperly chill future ...