Cotler v. Inter-County Orthopaedic Ass'n, P.A.
| Decision Date | 01 March 1976 |
| Docket Number | No. 75--1873,INTER-COUNTY,75--1873 |
| Citation | 530 F.2d 536 |
| Parties | Jerome M. COTLER, Petitioner, v.ORTHOPAEDIC ASSOCIATION, P.A., et al., Respondents, Honorable Mitchell H. Cohen, Nominal-Respondent. |
| Court | U.S. Court of Appeals — Third Circuit |
Samuel J. Serata, Serata & Stanger, Bridgeton, N.J., for respondent Mahaveer P. Prabhaker.
Gerald M. Eisenstat, Shapiro, Eisenstat, Capizola, O'Neill, Lisitski & Gabage, Vineland, N.J., for respondents Basil Ingemi and Barbara Ingemi.
Neil F. Deighan, Jr., Kisselman, Deighan, Montano & Summers, Camden, N.J., for respondents Warren C. Lummis, Steven Z. Kleiner, Jay R. Moore and Michael Brook Fisher, Ind. and T/A Lummis, Kleiner, Moore & Fisher.
Fred Lowenschuss Associates, Fred Lowenschuss, Philadelphia, Pa., for appellant; James J. Seeley, Camden, N.J., Gerald M. Eisenstat, Vineland, N.J., of counsel and on the brief.
Keron D. Chance, Bridgeton, N.J., for appellant The Farmers and Merchants National Bank of Bridgeton, New Jersey; Fred Lowenschuss, William D. Parry, Philadelphia, Pa., of counsel.
Before GIBBONS, Circuit Judge, MARKEY, * Chief Judge, Court of Customs and Patent Appeals, WEIS, Circuit Judge.
We are presented with a petition by a successful applicant for a writ of mandamus for an order assessing costs against the actual respondent. The question is of first impression in this court. We conclude that costs may be assessed in favor of the successful petitioner against the actual respondent.
The case came before this panel by appeal in No. 75--1451 and by a petition for mandamus in No. 75--1873 seeking relief from two orders of the district court. The first order granted a stay of federal proceedings so long as related actions in the Superior Court of New Jersey were pending and undecided. The second order directed the district court clerk to administratively terminate the action in his records, without prejudice to the right of the parties to reopen the proceedings. We held that this court lacked appellate jurisdiction since neither order was final, but that the stay of an action asserting a claim over which federal jurisdiction was exclusive was improper and remediable by mandamus.
In the course of his litigation the successful petitioner filed in this court a brief on appeal, an appendix and a petition for mandamus. The petition for a writ of mandamus relied upon the appendix filed in connection with the appeal. The brief on appeal argued the merits of the district court's action and was at least in part applicable to the mandamus proceeding.
In No. 75--1451 a judgment issued dismissing the appeal. In No. 75--1873, pursuant to an order of the court, a writ of mandamus issued. Petitioner, considering himself to be the prevailing party in No. 75--1873, applied to the Clerk of this Court for the assessment of costs. The Clerk, relying on Rule 39(a), Fed.R.App.P., declined to assess costs because the appeal in No. 75--1451 had been dismissed and because Rule 39 makes no provision for the assessment of costs in a mandamus proceeding. The instant petition followed. We requested briefing on the issue by the petitioner and the actual respondent.
Although Rule 39 does not in terms provide for the assessment of costs in a mandamus proceeding, we do not believe that ends our inquiry. When we exercise mandamus jurisdiction in aid of our appellate jurisdiction our authority to do so is conferred by the All Writs Act, 28 U.S.C. § 1651. When we exercise that jurisdiction it is an original action at law. There is no reason why costs should not be assessed in favor of the prevailing party in such an action at law as in any other. The Clerk of this Court can assess costs to the same extent that a district court clerk would do so pursuant to Rule 54(d), Fed.R.Civ.P.
The point has not often been litigated, but the First Circuit considered it sixty-eight years ago. In re Haight & Freese Co., 164 Fed. 688 (1st Cir. 1908). Pointing out that the judge was a nominal respondent, the court reasoned:
It would be contrary to the fundamental...
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Pulliam v. Allen, 82-1432
...of any failure to apprehend the law correctly." In re Haight & Freese Co., 164 F. 688, 690 (1908). Accord, Cotler v. Inter-County Orthopaedic Assn., 530 F.2d 536, 538 (CA3 1976). In sum, the perceived analogy to the use of prerogative writs at English common law simply does not withstand an......
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...to taxation of costs. The cost of printing letters and motions is not a taxable expense.9 See, e. g., Cotler v. Inter-County Orthopaedic Ass'n., 530 F.2d 536, 538 (3d Cir. 1976); Oliver v. Michigan State Bd. of Educ., 519 F.2d 619, 622 (6th Cir. 1975).10 Kushner v. Winterthur Swiss Ins. Co.......
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Wells v. International Great Lakes Shipping Co.
...defendants), we order him to pay the defendants' costs in this court personally. See Fed.R.App.Pro. 39(a); Cotler v. Inter-County Orthopaedic Ass'n, 530 F.2d 536, 538 (3d Cir.1976); cf. Hafter v. Farkas, 498 F.2d 587, 591 (2d ...
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State of Ariz. v. U.S. Dist. Court for Dist. of Ariz.
...costs may not be awarded to the prevailing party. We agree with the Court of Appeals for the Third Circuit. Cotler v. Inter-County Orthopaedic Ass'n, P.A., 530 F.2d 536 (3d Cir.1976). Under the All Writs Act, 28 U.S.C. Sec. 1651, mandamus is an original action at law, and costs may be asses......