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Allen v. Tobacco Superstore

March 13, 2007

PAMELA ALLEN PLAINTIFF
v.
TOBACCO SUPERSTORE, INC., ET AL. DEFENDANTS



ORDER

Pending before the Court is plaintiff's bill of costs. Plaintiff requests that costs in the amount of $1,079.83 for the court reporter's transcript in connection with the appeal be taxed as costs in this case. Defendants object stating that as the Eighth Circuit Court of Appeals affirmed in part, and reversed in part, plaintiff is not entitled to costs.

Rule 39(a) of the Federal Rules of Appellate Procedure provides that where the judgment is affirmed in part, reversed in part, modified or vacated, costs are taxed only as the court orders. There are very few cases interpreting this provision, especially with regard to a transcript. Most cases have dealt with premiums paid for a supersedeas bond. See F. R. A.P. 39(e)(3). In Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Ass'n, 117 F. 3d 1328, 1340 (11th Cir. 1997), the Eleventh Circuit found thatRule 39(a) leaves the imposition of costs to the discretion of the appellate court where the lower court judgment is affirmed in part, reversed in part or vacated. In exercising this discretion, a court must provide a specific directive. The phrase "only as ordered by the court" does not provide the parties with a unfettered right to all costs incurred on appeal. Rather, in cases where this court's determination does not produce closure, we must determine the relief to which the parties are entitled. Where this court's order fails to explicitly grant a class of costs, we must interpret that silence as a rejection of those costs.

In this case, the Eighth Circuit affirmed the judgment of the Court finding that defendant had discriminated and retaliated against plaintiff, but modified the amount of back pay and vacated the punitive damages award. The judgment awarding attorney's fees and costs was affirmed.

The Eighth Circuit did not address the issue of costs on appeal. In light of the Eighth Circuit's silence, the Court finds that plaintiff is not entitled to costs on appeal.

Accordingly, plaintiff's bill of costs is denied.

IT IS SO ORDERED.

20070313

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