Norton et al v. Canadian American Tank Lines et al, No. 3:2006cv00411 - Document 133 (W.D. Ky. 2009)
Court Description: MEMORANDUM OPINION AND ORDER granting 115 Motion for supersedeas Bond; Defendants' objections to plaintiff's costs are SUSTAINED and plaintiff's claimed costs are DENIED; Within 10 days from the date of entry of this order, the defen dants shall cause their insurer to tender the sum of $2,772,230.89 to the US District Court Clerk. Clerk is directed to deposit these funds into an interest-bearing account. Any efforts to collect upon or enforce the Judgment 109 are STAYED. D istribution of the funds deposited with the Clerk will be directed by further orders of this Court upon final resolution of the appeals taken from this court's judgment herein.. Signed by Judge Jennifer B. Coffman on 9/28/09. cc:counsel, Finance (JBM)
Download PDF
<![CDATA[
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION CIVIL ACTION NO. 06-411-C DELBERT E. NORTON, JR., ET UX., V. PLAINTIFFS, MEMORANDUM OPINION AND ORDER CANADIAN AMERICAN TANK LINES, ET AL., DEFENDANTS. * * * * * * * * * * * This matter is before the court upon the defendants motion to approve a supersedeas bond and stay enforcement of the judgment (R. 115). The court w ill grant the defendants motion for a supersedeas bond for an amount equaling the total damages and excluding costs or other additional fees. The court also w ill sustain the defendants objections to the plaintiffs request for costs (R. 120). I. BACKGROUND On April 3, 2009, this court entered judgment in favor of plaintiff Delbert Norton in the amount of $2,512,230.89 and in favor of plaintiff Kelly Norton in the amount of $260,000.00. The court aw arded costs to the plaintiffs. On May 5, 2009, the plaintiffs filed an accounting of costs, totaling $23,155.26. R. 112. Both the plaintiffs and the defendants have filed notices of appeal. See R. 111, R. 113. The defendants move the court to stay enforcement of the judgment pending the exhaustion of the defendants appeal and propose a cash supersedeas bond in the amount of $2,772,230.89, w hich is the sum of damages aw arded to the plaintiffs, to be tendered to the Clerk of the United States District Court for the Western District of Kentucky and held in an interest-bearing account. The plaintiffs do not object to the stay. How ever, plaintiffs request that the cash bond include not only the damages, but also their costs and a sufficient sum to cover any anticipated differential betw een the statutory rate of interest on the judgment and the actual interest earned w hile in the Court s registry. R. 116. II. ANALYSIS The only issue before the court for resolution is w hether, in addition to the full amount of damages, the bond should also include costs and a sum to cover any anticipated differential betw een the rate of post-judgement interest and the anticipated interest on the deposit. A. Costs Typically, a bond w ould include costs. Because of Rule 62(d) s dual protective role, a full supersedeas bond should almost alw ays be required. Hamlin v. Charter Tp. of Flint, 181 F.R.D. 348, 351 (E.D. Mich. 1998)(citing Poplar Grove Planting and Ref. Co., Inc. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1190 (5th Cir. 1979)). Courts generally require that the amount of the [supersedeas] bond include the full amount ow ed under the aw ard, post-judgment interest, attorney s fees and costs. Verhoff v. Time Warner Cable, Inc., No. 05-CV-7277, 2007 WL 4303743, at * 3 (N.D. Ohio Dec. 10, 2007); see Hoge v. Honda of Amer., Mfg., 2 Inc., No. 00-CV-995, 2003 WL 1338227 (S.D. Ohio March 3, 20033) (including in supersedeas bond damages, costs, and attorney fees from trial-level proceedings). In objecting to the plaintiff s bill of costs, the defendants argued that the plaintiffs had w aived their costs through counsel s failure to comply w ith Local Rule 54.3 and 28 U.S.C. § 1924. The court therefore ordered further briefing in order to allow the plaintiffs to respond to these arguments so that it could resolve this issue of costs. 1 The matter is now ripe for resolution. The plaintiffs admit that they failed to timely file a procedurally adequate bill of costs and concede that a bill of costs could have been filed in compliance w ith the rules. Local Rule 54.3 provides: The prevailing party must file a Bill of Costs w ith the Clerk and serve a copy of the Bill on each adverse party w ithin thirty (30) days of entry of judgment. If the Bill of Costs is not filed w ithin thirty (30) days, costs, other than those of the Clerk, taxable pursuant to 28 U.S.C. § 1920, shall be w aived. The Court may, on motion filed w ithin the time for filing of the Bill of Costs, extend the time for filing. 1 Resolution of costs prior to their being taxed by the Clerk is not the usual procedure. See BDT Prods., Inc. v. Lexmark Int l, Inc., 405 F.3d 415 (6th Cir. 2005) ( The usual procedure is for the clerk to fix the costs, after w hich a motion may be made for judicial review of the clerk s decision. The motion must be served w ithin five days after the clerk has taxed the costs. (citing Fed. R. Civ. P. 54(d)(1)). How ever, a district court has the inherent and statutory authority to act on motions related to costs prior to any action by the clerk based on the permissive language of Rule 54, the language of [28 U.S.C.] § 1920, and the fact that any decision by the clerk w ould have been subject to de novo review by the district court. BDT Prods., 405 F.3d at 418-19. The court determined that it could not resolve the issue of how much to set for the supersedeas bond, w here plaintiffs claimed it should include costs and defendants argued that plaintiffs w ere entitled to no costs, w ithout first resolving w hether and to w hat extent the plaintiffs w ere entitled to costs. 3 The plaintiffs did not move for an extension w ithin the time for filing and acknow ledge that the May 5, 2009, filing w as tw o days late. In addition, the filing w as incomplete in that it failed to comply w ith 28 U.S.C. § 1924, w hich provides: Before any bill of costs is taxed, the party claiming any item of cost or disbursement shall attach thereto an affidavit, made by himself or by his duly authorized attorney or agent having know ledge of the facts, that such item is correct and has been necessarily incurred in the case and that the services for w hich fees have been charged w ere actually and necessarily performed. The May 5 t h filing did not include an affidavit verifying the plaintiffs costs, although the plaintiffs have since filed an affidavit verifying the costs, including an itemization of costs and invoices. See R. 119, 112, 121. The plaintiffs do not dispute that the provisions quoted above apply, so the question becomes w hether the plaintiffs are entitled to costs despite their non-compliance w ith the provisions. The court concludes that, as a general principle, the Rules must be enforced and because the plaintiffs have not convinced the court otherw ise, they are denied costs. Rules of practice adopted by the district courts have the force and effect of law , and are binding not only upon the parties, but also upon the court w hich adopted them. Green Constr. Co. v. Williams Form Eng g Corp., 101 F.R.D. 12, 13 (D.C. Mich. 1984) (citing Woods Constr. Co. v. Atlas Chem. Indus., Inc., 337 F.2d 888 (10th Cir. 1964)). Enforcement of the rule promotes the court s interest in ensuring the finality of judgments. Dickinson Supply, Inc. v. Montana-Dakota Utils. Co., 423 F.2d 106, 110 (8th Cir. 1970). Numerous federal appellate and trial courts have held that failure to file a bill of costs w ithin the time allow ed by a 4 local rule results in w aiver. See Schake v. Colt Inds. Operating Corp. Severance Plan, 960 F.2d 1187 (3d Cir. 1992) (vacating aw ard of costs because, among other reasons, local rule required bill of costs w ithin ten days of judgment and filing made more than three months after judgment entered). See also, e.g., Quarles v. Oxford Mun. Separate Sch. Dist., 868 F.2d 750 (5th Cir. 1989); Woods, 337 F.2d 888; Fargo Biltmore Motor Hotel Corp. v. Best Western Int l, 742 F.2d 459 (8th Cir. 1984); Doran v. United States, 475 F.2d 742 (1st Cir. 1973); Dickinson Supply, Inc., 423 F.2d 106; Stronach v. Va. State Univ., 577 F. Supp. 2d 788 (E.D. Va. 2008); Wild v. Alster, No. 01-CV-479, 2005 WL 1458283, at * 2 (D.D.C. June 17, 2005); Green Constr. Co., 101 F.R.D. 12. While these opinions are not binding on this court, they are persuasive, and the defendants have effectively distinguished those opinions that might persuade the court to rule otherw ise. See Castro-Vega v. Waible, No. 07-675, 2008 WL 2704457 (D. Or. 2008) (adopting magistrate judge s recommendation to accept tw o-day-late bill of costs w here defendants in default and w ould not have responded regardless of w hen filed). Furthermore, the court w ill not construe a filing of late documents as a Rule 6(b)(1)(B) motion to accept the bill of costs as timely due to excusable neglect. See Inst. for Policy Studies v. U.S.C.I.A., 246 F.R.D. 380 (D.D.C. 2007) (finding that [i]t is an abuse of the court s discretion to consider an untimely filing in the absence of such a motion ); see also Lujan v. Nat l Wildlife Fed n, 497 U.S. 871, 896-97 (1990) (discussing Rule 6(b)(1)(B) and reversing appellate court that found 5 district court had abused its discretion in refusing to consider untimely affidavits). Cf. Castro-Vega, at * 2 (construing request for consideration of motion for attorney s fees filed tw o days late as request under Rule 6(b)(1)(B) to allow filing after expiration of deadline due to excusable neglect and granting request w here defendants in default and made no objection). 2 Even if it w ere to consider the issue, the court could not conclude that the plaintiffs counsel s neglect w as excusable. Inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable neglect. Pioneer Inv. Servs. Co. v. Brunsw ick Assocs. Ltd. P ship, 507 U.S. 380, 392 (1993). Excusable neglect is a strict standard w hich is met only in extraordinary cases. Nicholson v. City of Warren, 467 F.3d 525, 527 (6th Cir. 2006) (citing Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir. 1989)). Because the plaintiffs offer no explanation other than their ow n mistake or inadvertence, this case is not an extraordinary one, and the plaintiffs neglect w ould not be excusable. The court therefore concludes that it must enforce Local Rule 54.3, treat the untimely filing as a w aiver, and deny plaintiffs all costs, except those of the Clerk. 2 Lujan contains an informative discussion of Rule 6(b)(1)(B), noting that Rule 6 contains the mechanism by w hich [the court s] discretion is to be invoked and describing the contortions the court w ould have to go through in the absence of a Rule 6(b)(1) motion. See Lujan, 497 U.S. at 896-97 ( [T]he District Court w ould have had to regard the very filing of the late document as the motion made to file it; it w ould have had to interpret cause show n to mean merely cause, since respondent made no show ing of cause at all; and finally, it w ould have had to find as a substantive matter that there w as indeed cause for the late filing, and that the failure to file on time w as the result of excusable neglect. ). 6 B. Post-Judgment Interest The plaintiffs also request a sufficient sum to cover any anticipated differential betw een the statutory rate of interest on the judgment and the actual interest earned w hile in the Court s registry (R. 116); how ever, they do not suggest w hat such a sum might be. The defendants respond that the postjudgment interest rate on the judgment is fixed at 0.59% and the funds deposited w ith the Clerk are certain to accrue interest at a rate higher than that rate. The court agrees. The Clerk is required to deposit funds in an interest-accruing account, see Fed. R. Civ. P. 67, and so any additional sum to cover interest is unnecessary. III. CONCLUSION Accordingly, IT IS ORDERED: (1) The defendants objections to the plaintiffs costs are SUSTAINED and the plaintiffs claimed costs are DENIED. (2) The defendants motion for supersedeas bond (R. 115) is GRANTED. (3) Within ten days of the date of entry of this order, the defendants shall cause their insurer to tender the sum of $2,772,230.89 to the United States District Clerk for the Western District of Kentucky. The Clerk is directed to deposit these funds into an interest-bearing account. (4) Any efforts to collect upon or otherw ise enforce the Judgment (D.E. 109) are STAYED effective immediately and until such time as the defendants have exhausted their appellate remedies. (5) The distribution of the funds deposited w ith the Clerk pursuant to the terms of this order w ill be directed by further orders of this court upon final resolution of the appeals taken from this court s Judgment herein. 7 Signed on September 28, 2009 8
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
