Evangeline Smith v. Winn-Dixie Montgomery ( 2019 )

Case: 18-30302 Document: 00514835694 Page: 1 Date Filed: 02/14/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 14, 2019
No. 18-30302
Lyle W. Cayce
Clerk
INGA M. FERIA, As heir of the deceased Evangeline Smith; JAMES SMITH,
JR.; KEYOKA SMITH,
Plaintiffs - Appellants Cross-Appellees
v.
WINN-DIXIE MONTGOMERY, L.L.C.,
Defendant - Appellee Cross-Appellant
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC 2:17-CV-4837
Before JOLLY, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiffs, in their capacity as personal representatives for Evangeline
Smith, now deceased, appeal the district court’s dismissal of Smith’s personal
injury claim against Winn Dixie. Plaintiffs claim Smith was injured after
consuming crabs she purchased at Winn Dixie, which Plaintiffs claim were
infected with the rare bacterium aeromonas hydrophila. The district court
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-30302 Document: 00514835694 Page: 2 Date Filed: 02/14/2019
No. 18-30302
determined that Plaintiffs failed to present evidence that Winn Dixie breached
the applicable standard of care and held that Plaintiffs were not entitled to
additional discovery under Federal Rule of Civil Procedure 56(d). After careful
review of the record in this case, full consideration of the parties’ briefs and
oral arguments, and the district court’s thorough opinion, we affirm the district
court’s judgment for the reasons stated by that court.
Winn Dixie cross appeals the district court’s judgment, asking that we
remand the case to the district court for entry of a judgment that explicitly
awards costs in favor of Winn Dixie pursuant to Rule 54(d). We decline this
invitation. Although the district court’s judgment did not explicitly award
costs, it did not definitively deny Winn Dixie the opportunity to seek costs.
Winn Dixie therefore remained entitled to seek a judgment as to costs pursuant
to Rule 54(d) in the district court even after entry of final judgment, and
Plaintiffs’ notice of an appeal in this court had no effect on the district court’s
jurisdiction to entertain such a motion. See Moody Nat. Bank of Galveston v.
GE Life & Annuity Assur. Co., 383 F.3d 249, 250 (5th Cir. 2004) (“Motions
addressing costs and attorney’s fees . . . are generally made pursuant to Rule
54 [and] are considered collateral to the judgment.” (citing Fed. R. Civ. P
54(d))); Coward v. AC & S., Inc., 91 F. App’x 919, 922 (5th Cir. 2004) (noting
that “a court retains jurisdiction over collateral matters post-divestiture of
jurisdiction on the merits” (citing Cooter v. Hartmarx Corp., 496 U.S. 484, 396
(1990))). However, Winn Dixie’s right to seek costs in the district court has
since expired. The district court’s local rules require that “the party in whose
favor judgment is rendered and who is allowed costs,” must file a motion to tax
costs “[w]ithin 35 days of receiving notice of entry of judgment.” E.D. LA. LOC.
R. 54.3. Thus, remand here would be futile.
AFFIRMED.
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