Lafaro v. N.Y. Cardiothoracic Group, PLLC, et al., No. 08-4621 (2d Cir. 2009)
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08-4621-cv Lafaro v. New York Cardiothoracic Group 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT August Term, 2008 (Argued: March 16, 2009 Decided: August 7, 2009) Docket No. 08-4621-cv R OCCO J. L AFARO, M.D., A RLEN G. F LEISHER, M.D., C ARDIAC S URGERY G ROUP, P.C., Plaintiffs-Appellants, v. N EW Y ORK C ARDIOTHORACIC G ROUP, PLLC, S TEVEN L. L ANSMAN, M.D., D AVID S PIELVOGEL, M.D., W ESTCHESTER C OUNTY H EALTH C ARE C ORPORATION, W ESTCHESTER M EDICAL C ENTER, Defendants-Appellees. Before: C ALABRESI and W ESLEY, Circuit Judges, and D RONEY, District Judge. * Plaintiffs-appellants itemized bill of costs submitted pursuant to Rule 39(d) of the Federal Rules of Appellate * The Honorable Christopher F. Droney, United States District Court for the District of Connecticut, sitting by designation. Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 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. R ICHARD G. M ENAKER, Menaker & Herrmann, LLP, New York, NY, for Plaintiffs-Appellants. J ORDY R ABINOWITZ, Senior Associate General Counsel, Westchester County Health Care Corporation, Office of Legal Affairs, Valhalla, NY, for Defendants-Appellees. P ER C URIAM: 22 In the appeal underlying this application for costs, we 23 vacated the district court's order and remanded the case for 24 further proceedings. 25 No. 08-4621-cv, 2009 U.S. App. LEXIS 14283 (2d Cir. July 1, 26 2009). 27 subsequently filed their itemized bill of costs, to which 28 defendants-appellees object on the ground that, in the event 29 of vacatur and remand, Federal Rule of Appellate Procedure 30 39(a)(4) provides for costs only as ordered by the Court. 31 We have previously allowed the party seeking and Lafaro v. N.Y. Cardiothoracic Group, Plaintiffs-appellants, who sought the remand, Page 2 of 3 1 obtaining vacatur and remand to obtain costs by filing a 2 bill of costs where not previously ordered by the court. 3 Gierlinger v. Gleason, 160 F.3d 858, 867, 881-82 (2d Cir. 4 1998). 5 were asserted did not timely file an objection. 6 That is not the situation here. However, in Gierlinger, the party against whom costs See id. 7 Where a judgment is affirmed in part, reversed in 8 part, modified, or vacated, Fed. R. App. P. 39(a)(4), costs 9 must be ordered before a party filing a bill of costs under 10 Federal Rule of Appellate Procedure 39(d) is entitled to 11 receive them. 12 bill of costs as an appropriate application for costs and 13 GRANT the motion. We therefore construe plaintiffs-appellants 14 Page 3 of 3
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