Allianz Life Insurance Company of North America v. Gene L. Muse, M.d.

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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ALLIANZ LIFE INSURANCE
COMPANY OF NORTH AMERICA,
Plaintiff Counterclaim Defendant –
Appellant,
v.
GENE L. MUSE, M.D.,
Defendant Counterclaimant –
Appellee,
and
PATIA PEARSON,
Defendant.
No. 21-6083
(D.C. No. 5:17-CV-01361-G)
(W.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, MORITZ, and CARSON, Circuit Judges.
_________________________________
Allianz Life Insurance Company of North America appeals from the district
court’s order affirming the clerk’s taxation of costs against Allianz and in favor of
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 31, 2022
Christopher M. Wolpert
Clerk of Court
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appellee Gene L. Muse, M.D. Allianz argues that it is the prevailing party, entitled to
costs under Federal Rule of Civil Procedure 54(d)(1), because the district court
entered summary judgment in its favor on its declaratory judgment claim against
Dr. Muse.
This court, however, recently reversed that decision in part. See Allianz Life
Ins. Co. of N. Am. v. Muse (Allianz I), Nos. 20-6026, 20-6185, & 20-6186, 2022 WL
3701606, at *8, *14 (10th Cir. Aug. 26, 2022) (unpublished). In addition, Allianz I
ordered further proceedings on other claims. See id. at *10, *13, *14-15. At this
point, therefore, neither this court nor the district court can identify a prevailing party
for purposes of Rule 54(d)(1). See Champagne Metals v. Ken-Mac Metals, Inc.,
458 F.3d 1073, 1095 (10th Cir. 2006) (“Because we are remanding this case for
further proceedings, the ‘prevailing party’ has yet to be established, and thus we
necessarily must vacate the district court’s award of costs.”); see also Osborne v.
Baxter Healthcare Corp., 798 F.3d 1260, 1281 (10th Cir. 2015) (“BioLife’s argument
[that it is entitled to costs] is premised on the determination that it is the prevailing
party, and because we reverse and remand the grant of summary judgment, that
determination is moot.”). As in Osborne, “[o]n remand, the district court will have
an opportunity to allocate costs as it sees fit in light of the proceedings to follow.”
798 F.3d at 1281.
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For these reasons, we vacate the district court’s order affirming the clerk’s
taxation of costs and remand for further proceedings.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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