71 F.3d 88 (2nd Cir. 1995), 371, LoSacco v. City of Middletown

Docket Nº:371, Docket 95-7298.
Citation:71 F.3d 88
Party Name:Frank X. LoSACCO, Plaintiff-Appellant, v. CITY OF MIDDLETOWN, Sebastian J. Garafalo, George Aylward, Joseph Bibisi, John Chowaniec, and Relford Ward, Defendants-Appellees.
Case Date:December 05, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 88

71 F.3d 88 (2nd Cir. 1995)

Frank X. LoSACCO, Plaintiff-Appellant,

v.

CITY OF MIDDLETOWN, Sebastian J. Garafalo, George Aylward,

Joseph Bibisi, John Chowaniec, and Relford Ward,

Defendants-Appellees.

No. 371, Docket 95-7298.

United States Court of Appeals, Second Circuit

December 5, 1995

Submitted Nov. 1, 1995.

Page 89

Frank X. LoSacco, pro se.

Carl R. Ficks, Jr., Eisenberg, Anderson, Michalik & Lynch, New Britain, CT, for defendants-appellees.

Before LUMBARD, ALTIMARI, and McLAUGHLIN, Circuit Judges.

Page 90

McLAUGHLIN, Circuit Judge:

Frank X. LoSacco, pro se, appeals from a January 5, 1995 order of the United States District Court for the District of Connecticut (Kevin F. Rowe, Clerk, per Robin D. Tabora, Deputy Clerk ) taxing costs in favor of the defendants as prevailing parties on a judgment that we had affirmed by summary order, LoSacco v. City of Middletown, No. 94-7142 (2d Cir. Aug. 16, 1994). He also appeals from a March 6, 1995 order of the district court (Thomas P. Smith, Magistrate Judge ) denying review of the award of costs. We affirm.

I.

In 1989, LoSacco employed a time-honored method of self-help: he got into a fight with James Smith. To LoSacco's dismay, Smith prevailed, stabbing him in the chest. Both men were arrested and prosecuted on assault charges. Smith was acquitted; LoSacco was convicted. LoSacco's conviction, however, was set aside on appeal, and the assault charge against him was ultimately dismissed.

Seeking vindication, LoSacco, pro se, brought an action in December, 1989 in federal court (Alan H. Nevas, Judge ) against the City of Middletown and various individuals pursuant to 42 U.S.C. Sec. 1983, alleging false arrest, conspiracy, and pendent state law defamation claims. After years of discovery and motions practice, the case went to trial before a jury in November, 1993.

The trial lasted eight days. At the close of LoSacco's case, Judge Nevas granted judgment as a matter of law for the defendants on the conspiracy and defamation claims. He submitted the false arrest claim to the jury. After several hours of deliberation, the jury returned a verdict for the defendants. LoSacco promptly moved for a new trial, but the motion was denied.

LoSacco then appealed, raising several issues. We found only one worthy of mention, and affirmed by summary order on July 25, 1994. The mandate did not issue, however, because we filed an amended summary order on August 16, 1994. LoSacco v. City of Middletown, No. 94-7142 (2d Cir. Aug. 16, 1994). On September 21, 1994, the mandate finally issued, returning jurisdiction to the district court.

Under Local Rule 17 of the United States District Court for the District of Connecticut, the successful defendants had ten days after our mandate issued to "file with the Clerk and serve on all other parties a verified bill of costs ... setting forth each item of costs that is claimed." D.Conn.Loc.R. 17(a)(1). The defendants failed to do so, missing the filing deadline by several days. Counsel for defendants then moved for leave to file the defendants' bill of costs out of time, and attached a copy of the bill of costs he proposed to file. His excuse for missing the filing deadline was that he was on his honeymoon when our mandate issued.

LoSacco opposed the motion with a "Memorandum in Opposition to Motion for Leave to File Bill of Costs and Bill of Costs." He objected to (a) the defendants' motion to file their bill of costs out of time, and (b) the proposed bill of costs attached to that motion. Although LoSacco focused almost entirely on the defendants' purported lack of good cause for not filing a timely bill of costs, he did object to some $240 in witness fees listed in the proposed bill of costs. He contended that these witnesses--police officers--had never been paid any witness fees.

Counsel for defendants filed a reply to LoSacco's opposition papers. He noted that under Local Rule 17(a), the time to file...

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