Summary
construing a previous version of Rule 54(d) with a five-day review period
Summary of this case from Tastan v. L. Alamos Nat'l Sec., LLCOpinion
No. 02-6385.
August 4, 2003.
Appeal from the United States District Court for the Western District of Oklahoma, Stephen P. Friot, J.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a)(2); 10th Cir.R. 34.1(G). The case therefore is submitted without oral argument.
Marilyn D. Barringer-Thomson, Oklahoma City, OK, for Plaintiff-Appellant Darius Juan Bloomer.
Shannon B. Schmoyer and Clay A. Hartmann, of Akin Gump Strauss Hauer Feld, L.L.P., Dallas, TX, and Robert E. Manchester and Shannon K. Emmons of Phillips McFall McCaffrey McVay Murrah, P.C., Oklahoma City, OK, for Defendant-Appellee United Parcel Service, Inc.
Before TACHA, Chief Circuit Judge, KELLY, and BRISCOE, Circuit Judges.
Plaintiff Bloomer appeals an award of costs entered in favor of Defendant United Parcel Service by the clerk of the district court. We dismiss because by failing to request the district court to review the clerk's award, Plaintiff has waived the right to judicial review.
Final judgment was entered by the district court in favor of Defendant on September 23, 2002. Fourteen days later, Defendant filed a bill of costs with the clerk of the court. Plaintiff filed objections. On November 7, 2002, the clerk awarded Defendant $2,419.80 in costs. Rather than move the district court to review the clerk's award within five days as required by Fed.R.Civ.P. 54(d)(1), Plaintiff filed a notice of appeal twenty-five days after entry of the clerk's award.
Rule 54(d)(1) provides in relevant part as follows:
On motion served within 5 days [after clerk's award], the action of the clerk may be reviewed by the court.
(Emphasis added.)
Those circuits that have construed this language have concluded that a party's failure to file a motion for review of costs with the district court within the five-day period constitutes a waiver of the right to challenge the award. We agree.
In Prince v. Poulos, 876 F.2d 30, 34 (5th Cir. 1989), the Fifth Circuit held that appellant had "waived his objection to the Bill of Costs" because he "failed to object to the costs" within the five-day time period. The Seventh and Ninth Circuits also have held that they may review an award of costs only when a party first files a proper motion for review in the district court within the five-day period specified for such motions See Cooper v. Eagle River Memorial Hosp., Inc., 270 F.3d 456, 464 (7th Cir. 2001); Walker v. California, 200 F.3d 624, 626 (9th Cir. 1999); see also Fleet Inv. Co., Inc. v. Rogers, 87 F.R.D. 537, 540 (W.D.Okla. 1978) (district court held that defendant's failure to file motion to review clerk's taxation of costs within Rule 54(d)(1)'s time period precluded review), aff'd, 620 F.2d 792 (10th Cir. 1980).
DISMISSED. The mandate shall issue forthwith.