Cosgrove v. Sears, Roebuck, & Co.

• Decision Date: 10 February 1999
• Docket Number: Docket No. 97-7881
• Citation: 191 F.3d 98
• Parties: (2nd Cir. 1999) PATRICIA COSGROVE, Plaintiff-Appellant, v. SEARS, ROEBUCK, & COMPANY, Defendant-Appellee. August Term 1998 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 98

191 F.3d 98 (2nd Cir. 1999)

PATRICIA COSGROVE, Plaintiff-Appellant, v. SEARS, ROEBUCK, & COMPANY, Defendant-Appellee.

Docket No. 97-7881

August Term 1998

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: February 10, 1999

Decided: September 01, 1999

Appeal from judgment of the United States District Court for the Southern District of New York (Allen G. Schwartz, Judge) declining to consider plaintiff-appellant's objection to defendant-appellee's bill of costs.

VACATED and REMANDED.

PATRICIA COSGROVE, Pro Se, New York, NY.

PAMELA S. HOROWITZ, Washington, DC (Advocates at Law Chartered, Washington DC, ARTHUR J. GINSBURG, Frankfurt, Garbus, Klein & Selz, New York, NY, of counsel), for Defendant-Appellee.

Before: PARKER and VAN GRAAFEILAND, Circuit Judges, and MISHLER, District Judge.^*

PER CURIAM:

Plaintiff-appellant Patricia Cosgrove ("Cosgrove" or "Plaintiff"), pro se, appeals from a judgment entered in the United States District Court for the Southern District of New York (Allen G. Schwartz, Judge) declining to consider Cosgrove's objection to the bill of costs submitted by defendant-appellee Sears, Roebuck, and Company ("Sears" or "Defendant"). For the reasons set forth below, we vacate and remand the case to the district court for further proceedings.

I. BACKGROUND

In 1981, Cosgrove filed an employment discrimination complaint against Sears, in the U.S. District Court for the Southern District of New York, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that: (1) Sears discriminated against her in both compensation and promotion based upon her gender, in violation of 42 U.S.C. § 2000e-2(a)(1); (2) Sears retaliated against her, and eventually fired her, following a sex discrimination complaint filed with the Equal Employment Opportunity Commission ("EEOC"), in violation of 42 U.S.C. § 2000e-3(a); (3) she had been the object of harassment in the workplace; and (4) following her termination, Sears impeded her efforts to obtain new employment. On January 10, 1992, following a bench trial, the district court (Charles S. Haight, Jr., Judge) determined that Cosgrove had failed to prove any of her claims and dismissed her complaint. Cosgrove v. Sears, Roebuck & Co., No. 81 Civ. 3482, 1992 WL 8718 (S.D.N.Y. Jan. 10, 1992). Cosgrove filed a timely notice of appeal.

On appeal, this Court affirmed the district court's judgment dismissing Cosgrove's claims of gender discrimination, sexual harassment and post-termination retaliation and reversed the district court's judgment regarding Cosgrove's retaliatory discharge claim. Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1042 (2d Cir. 1993). We concluded that Cosgrove is "entitled not only to prevail on her retaliatory discharge claim but is also entitled to remedial relief for the period between when she was discharged based upon the discriminatory factor and when she would have been discharged based upon her performance alone." Id. at 1041. We remanded the case to the district court for a calculation of her damages.¹

On remand, following an evidentiary hearing on the issue of damages, the district court awarded Cosgrove $4,550 in back pay plus pre-judgment interest at a rate of 9% annually. Cosgrove v. Sears, Roebuck & Co., 1995 WL 463103, at *9 (S.D.N.Y. Aug. 3, 1995). This Court affirmed the award. Cosgrove v. Sears, Roebuck & Co., 104 F.3d 355 (2d Cir. 1996).

Cosgrove's previous counsel, Noah A. Kinigstein, moved for an award of approximately $270,000 of reasonable attorneys' fees and costs under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-5(k). The district court (1) determined that "[s]ince plaintiff was awarded $4,550 in damages on her retaliatory discharge claim, she qualifies as a prevailing party"; but (2) found that in light of the fact that Cosgrove prevailed only as to the retaliatory discharge claim, "the award Kinigstein seeks is clearly excessive,"² and therefore found that he was "entitled to twenty percent of his requested fee, exclusive of that portion relating to the hours spent after his discharge."³ This amount was calculated as $47,234, plus disbursements of $121.50 for a total of $47,355.50. Cosgrove v. Sears, Roebuck & Co., 81 Civ. 3482 (S.D.N.Y. Mar. 6, 1996).

On March 6, 1997, the Clerk of the Court signed a bill of costs for Sears, which the district court entered in favor of Sears in the total amount of $7,938.70 on March 11, 1997. The bill of costs stated that, "[J]udgment having been entered in the [Cosgrove v. Sears, Roebuck & Co.] action on January 23, 1992 against Patricia Cosgrove, the Clerk is requested to tax the following as costs:" (1) $3,733.29 for fees of the court reporter for all or any part of the transcript necessarily obtained for use in the case; (2) $4,176.00 for fees for witnesses; and (3) $29.41 for fees for exemplification and copies of papers necessarily obtained for use in the case.

According to Cosgrove, on March 12, 1997, she filed her objections to Sears' bill of costs with the district court, but the district court's pro se office returned the documents to her on the ground that the case was closed. There appears to be documentary support for Cosgrove's claim. The appendix on appeal contains a pleading (from Cosgrove) entitled Bill of Costs, dated March 12, 1997, which indicates that as prevailing party Cosgrove rather than Sears is entitled to costs. (Appellant's Exhibit A14). Also, Cosgrove's Exhibit A1 includes a letter dated March 14, 1997 to Cosgrove from the pro se clerk purporting to respond to papers received on March 13, 1997, indicating that they were being returned because the case had been previously dismissed.

Thereafter, Cosgrove sent a letter to the district court dated May 26, 1997, objecting to the bill of costs. By Order dated May 29, 1997, the district court declined to consider Cosgrove's objection. In its Order, the district court briefly set forth the procedural history of the case and stated:

On March 6, 1997, the Clerk of the Court taxed defendant's costs for those claims with regard to which defendant prevailed before Judge Haight. Federal Rule of Civil Procedure 54(d) provides that "[c]osts may be taxed by the clerk on one day's notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court." Plaintiff Cosgrove submitted her opposition to defendant's Bill of Costs on May 26, 1997, well after the end of the five day period established by Federal Rule 54(d). Although Cosgrove claims that she previously (no date specified) sent an objection to the Court, the court file contains no objection from Cosgrove other than her May 26, 1997 submission. Accordingly, the Court declines to consider Cosgrove's objection to defendant's Bill of Costs.

It therefore appears that Cosgrove may well have attempted to file an objection of which the court was unaware.

Cosgrove filed a timely notice of appeal on June 30, 1997, contending principally that as the prevailing party in her Title VII action, it was improper for the district court to award costs to Sears. Sears moved to dismiss the appeal and this Court denied the motion in February 1998.⁴

II. DISCUSSION

Fed. R. Civ. P. 54(d), entitled "Costs; Attorneys' Fees," states in relevant part as follows:

(1) Costs Other Than Attorneys' Fees. Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs. . . . Such costs may be taxed by the clerk on one day's notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.

Fed. R. Civ. P. 54(d)(1).

Defendant argues that even if Plaintiff did file an objection on March 12, 1997, it was untimely. Although the clerk taxed Defendant's costs to Plaintiff on March 6, 1997, entry did not occur until March 11, 1997. The objection was allegedly filed on the 12th or 13th of March 1997. By the Rule, Plaintiff had five days to file. If the five-day period runs from date of entry, the filing was obviously timely. Even if it were to run from March 6th, it was timely since a weekend (which is not counted) intervened, so that the fifth day would have run on March 13th. In any event, the court has discretionary authority to extend the time limit under such circumstances. Fed. R. Civ. P. 6(b); see also Lorenz v. Valley Forge Ins. Co., 23 F.3d 1259, 1261 (7th Cir. 1994).

In her objection to the bill of costs, Plaintiff contends that because her Title VII claims against Defendant were not "useless, baseless or frivolous," the assessment of costs against her was erroneous. We disagree. Fed. R. Civ. P. 54(d) grants costs to a prevailing party as a matter of course in the absence of a countervailing statute or rule, unless the trial judge directs otherwise. Notably, this Court directed the parties to address whether the standard enunciated in Christiansburg Garment Co., 434 U.S. 412 (1978), for assessing attorney's fees for a prevailing defendant in a Title VII action, should apply to the assessment of costs in this action.

In Christiansburg, the Supreme Court, in interpreting 42 U.S.C. § 2000e-5(k) of Title VII,⁵ held that "a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless..." 434 U.S. at 422; accord American Federation of State County and Municipal Employees, AFL-CIO v. County of Nassau, 96 F.3d 644, 650 (2d Cir. 1996). We see no reason, however, to apply the same type of heightened standard to the assessment of costs. See Poe v. John Deere Co., 695 F.2d 1103, 1108 (8th Cir. 1982)(declining to extend Christiansburg standard to costs assessment); Trevino v. Holly Sugar Corp., 811 F.2d 896, 906 (5th Cir. 1987)(holding that the fact that Title VII suit was not frivolous did not preclude award of...