Ronald B. Paul v. Farmland Industries ( 1998 )


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  •                           United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 97-2984
    ___________
    Ronald B. Paul,                           *
    *
    Appellant,                   *
    * Appeal from the United States
    v.                                  * District Court for the
    * Western District of Missouri.
    Farmland Industries, Inc.,                *
    *      [UNPUBLISHED]
    Appellee.                    *
    ___________
    Submitted: April 6, 1998
    Filed: April 9, 1998
    ___________
    Before FAGG, BEAM, and HANSEN, Circuit Judges.
    ___________
    PER CURIAM.
    Ronald B. Paul brought an unsuccessful employment action against Farmland
    Industries, Inc. (Farmland). Several months after this court affirmed the judgment, see
    Paul v. Farmland Indus. Inc., 
    37 F.3d 1274
    , 1275 (8th Cir. 1994), cert. denied, 
    514 U.S. 1017
    (1995), Farmland filed a supplemental bill of costs under Federal Rule of
    Appellate Procedure 39(e) for court reporter fees incurred in obtaining a transcript for
    the appeal. The district court1 awarded these costs, rejecting Paul&s argument that
    Farmland&s request was untimely under Rule 39(d). Paul appeals, and we affirm.
    1
    The Honorable Dean Whipple, United States District Judge for the Western
    District of Missouri.
    Rule 39(a) allows costs to be taxed against the appellant if the judgment is
    affirmed. Subdivision (c) allows the court of appeals to fix by local rule the maximum
    rate for “the cost of printing or otherwise producing necessary copies of briefs,
    appendices, and copies of records.” Subdivision (d) provides in part, “A party who
    desires such costs to be taxed shall state them in an itemized and verified bill of costs”
    filed with the clerk “within 14 days after the entry of judgment.” Subdivision (e) states
    in part, “Costs incurred in the preparation and transmission of the record, [and] the cost
    of the reporter&s transcript, if necessary for the determination of the appeal, . . . shall
    be taxed in the district court as costs of the appeal in favor of the party entitled to costs
    under this rule.”
    We believe the district court correctly joined other courts in finding the phrase
    “such costs” in subdivision (d) refers to the costs listed in subdivision (c). See
    McKelvy v. Metal Container Corp., 
    125 F.R.D. 179
    , 183 (M.D. Fla. 1989) (Rule 39(d)
    governs procedure by which costs are requested from court of appeals; reference to
    “such costs” implies those parts of rule preceding subdivision (d)); see also McDonald
    v. McCarthy, 
    966 F.2d 112
    , 114-15 (3d Cir. 1992) (stating in dictum that reading Rule
    39 in its entirety reveals time limits in Rule 39(d) apply to costs of briefs, appendices,
    and copies of records allowable under Rule 39(c), and that Rule 39(d)&s time limit
    should not be read into Rule 39(e)); Sudouest Import Sales Corp. v. Union Carbide
    Corp., 
    102 F.R.D. 264
    , 264-65 (D. P.R. 1984) (stating in dictum that Rule 39(e) says
    nothing about time limit). We also believe the district court correctly reasoned that
    subdivisions (c) and (e) refer to different types of costs that are to be requested in
    different courts. See Waterman S.S. Corp. v. Gay Cottons, 
    419 F.2d 372
    , 373 (9th Cir.
    1969) (cost of reporter&s transcript for appeal is taxable in district court); 16A Charles
    Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure
    § 3985.1, at 672-73 (2d ed. 1996) (costs listed in Rule 39(e) are taxable only in the
    district court and “prevailing party should make a separate application to the district
    court after the mandate has been received from the court of appeals”). Furthermore,
    -2-
    we construe subdivision (e)&s language “costs under this rule” to refer to subdivision
    (a)&s provisions as to whom costs are allowed.
    For these reasons we agree with the district court that the fourteen-day time limit
    of subdivision (d) does not apply to costs taxed in the district court under subdivision
    (e), and we see no abuse of discretion in the district court&s determination that the
    timing of Farmland&s request was reasonable. Accordingly, we affirm.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -3-
    

Document Info

Docket Number: 97-2984

Filed Date: 4/9/1998

Precedential Status: Non-Precedential

Modified Date: 10/13/2015