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Lafaro v. New York Cardiothoracic Group

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008


August 7, 2009

ROCCO J. LAFARO, M.D., ARLEN G. FLEISHER, M.D., CARDIAC SURGERY GROUP, P.C., PLAINTIFFS-APPELLANTS, -
v.
NEW YORK CARDIOTHORACIC GROUP, PLLC, STEVENL. LANSMAN, M.D., DAVID SPIELVOGEL, M.D., WESTCHESTER COUNTY HEALTHCARE CORPORATION, WESTCHESTER MEDICAL CENTER, DEFENDANTS-APPELLEES.

SYLLABUS BY THE COURT

Plaintiffs-appellants' itemized bill of costs submitted pursuant to Rule 39(d) of the Federal Rules of Appellate Procedure following a judgment of this Court, entered July 1, 2009, that vacated and remanded a September 11, 2008 order of the United States District Court for the Southern District of New York (Robinson, J.), is hereby construed as an application for costs and GRANTED.

GRANTED.

Per curiam.

Argued: March 16, 2009

Before: CALABRESI and WESLEY, Circuit Judges, and DRONEY, District Judge.*fn1

In the appeal underlying this application for costs, we vacated the district court's order and remanded the case for further proceedings. Lafaro v. N.Y. Cardiothoracic Group, No. 08-4621-cv, 2009 U.S. App. LEXIS 14283 (2d Cir. July 1, 2009). Plaintiffs-appellants, who sought the remand, subsequently filed their itemized bill of costs, to which defendants-appellees object on the ground that, in the event of vacatur and remand, Federal Rule of Appellate Procedure 39(a)(4) provides for costs only as ordered by the Court.

We have previously allowed the party seeking and obtaining vacatur and remand to obtain costs by filing a bill of costs where not previously ordered by the court. Gierlinger v. Gleason, 160 F.3d 858, 867, 881-82 (2d Cir. 1998). However, in Gierlinger, the party against whom costs were asserted did not timely file an objection. See id. That is not the situation here.

Where "a judgment is affirmed in part, reversed in part, modified, or vacated," Fed. R. App. P. 39(a)(4), costs must be ordered before a party filing a bill of costs under Federal Rule of Appellate Procedure 39(d) is entitled to receive them. We therefore construe plaintiffs-appellants' bill of costs as an appropriate application for costs and GRANT the motion.


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