Lafaro v. New York Cardiothoracic Group 1

The Honorable Christopher F. Droney, United States*
District Court for the District of Connecticut, sitting by
designation.
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08-4621-cv
Lafaro v. New York Cardiothoracic Group
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5
6
7 August Term, 2008
8
9 (Argued: March 16, 2009 Decided: August 7, 2009)
10
11 Docket No. 08-4621-cv
12
13
14 ROCCO J. LAFARO, M.D., ARLEN G. FLEISHER, M.D., CARDIAC SURGERY
15 GROUP, P.C.,
16
17 Plaintiffs-Appellants,
18
19 –v.–
20
21 NEW YORK CARDIOTHORACIC GROUP, PLLC, STEVEN L. LANSMAN, M.D., DAVID
22 SPIELVOGEL, M.D., WESTCHESTER COUNTY HEALTH CARE CORPORATION,
23 WESTCHESTER MEDICAL CENTER,
24
25 Defendants-Appellees.
26
27
28
29 Before:
30 CALABRESI and WESLEY, Circuit Judges, and DRONEY, District
31 Judge.*
32
33 Plaintiffs-appellants’ itemized bill of costs submitted
34 pursuant to Rule 39(d) of the Federal Rules of Appellate

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1 Procedure following a judgment of this Court, entered July
2 1, 2009, that vacated and remanded a September 11, 2008
3 order of the United States District Court for the Southern
4 District of New York (Robinson, J.), is hereby construed as
5 an application for costs and GRANTED.
6
7 GRANTED.
8
9
10
11 RICHARD G. MENAKER, Menaker & Herrmann, LLP, New
12 York, NY, for Plaintiffs-Appellants.
13
14 JORDY RABINOWITZ, Senior Associate General Counsel,
15 Westchester County Health Care Corporation,
16 Office of Legal Affairs, Valhalla, NY, for
17 Defendants-Appellees.
18
19
20
21 PER CURIAM:
22 In the appeal underlying this application for costs, we
23 vacated the district court's order and remanded the case for
24 further proceedings. Lafaro v. N.Y. Cardiothoracic Group,
25 No. 08-4621-cv, 2009 U.S. App. LEXIS 14283 (2d Cir. July 1,
26 2009). Plaintiffs-appellants, who sought the remand,
27 subsequently filed their itemized bill of costs, to which
28 defendants-appellees object on the ground that, in the event
29 of vacatur and remand, Federal Rule of Appellate Procedure
30 39(a)(4) provides for costs only as ordered by the Court.
31 We have previously allowed the party seeking and

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1 obtaining vacatur and remand to obtain costs by filing a
2 bill of costs where not previously ordered by the court.
3 Gierlinger v. Gleason, 160 F.3d 858, 867, 881-82 (2d Cir.
4 1998). However, in Gierlinger, the party against whom costs
5 were asserted did not timely file an objection. See id.
6 That is not the situation here.
7 Where “a judgment is affirmed in part, reversed in
8 part, modified, or vacated,” Fed. R. App. P. 39(a)(4), costs
9 must be ordered before a party filing a bill of costs under
10 Federal Rule of Appellate Procedure 39(d) is entitled to
11 receive them. We therefore construe plaintiffs-appellants’
12 bill of costs as an appropriate application for costs and
13 GRANT the motion.
14

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