Opinion
Civil Action No. 97-2677 (CKK/JMF)
March 11, 2002
REPORT AND RECOMMENDATION
Defendant's Bill of Costs has been referred to me by Judge Kollar-Kotelly for a Report and Recommendation pursuant to LCvR 72.3. Plaintiff KiSKA Construction Corporation — USA and Kajima Engineering and Construction, Inc. ("KiSKA-Kajima") brought this breach of contract action against the Washington Metropolitan Area Transit Authority ("Metro"), alleging that Metro had issued faulty specifications for a contract to dig a tunnel for Metro's mass transit system. After a five-week trial and ten days of jury deliberations, the jury returned a verdict in favor of defendant on all counts. After the judge's referral to me, plaintiffs appealed and the matter is pending before the Court of Appeals. Since it is, I must recommend in accordance with LCvR 54.1 that defendant's Bill of Costs be stricken without prejudice to defendant's re-filing it if the final judgment is affirmed.
LCvR 54.1(c) provides:
The Clerk shall tax costs after the judgment has become final or at such earlier time as the parties may agree or the court may order. A judgment is final when the time for appeal has expired and no appeal has been taken, or when the court of appeals issues its mandate.
The local rule follows those courts that have exercised their discretion to await the resolution on appeal before taking any action on costs. One court has noted that if it were to rule on costs before the appeal is decided, there is at least a risk that the prevailing party will lose the right to seek costs if that party lost in the district court but prevailed on appeal. Interactive Pictures Corp. v. Infinite Pictures, Inc., 2002 U.S. Dist. LEXIS 828 (E.D.Tenn., Jan. 3, 2002); Brown v. American Enka Corp., 452 F. Supp. 154, (E.D.Tenn. 1976); American Infra-Red Radiant Co. Inc. v. Lambert Industries, Inc., 41 F.R.D. 161, 163 (D.Minn. 1966).
More significantly, in my view, resolution of the complicated legal issues the parties raise will be a wasteful, academic exercise if defendant fails to prevail on appeal. The interest in judicial efficiency and the absence of any prejudice to defendant compel me to recommend that this court exercise its discretion to await the resolution of the appeal before costs are taxed.
I therefore recommend that defendant's Bill of Costs [#217] be stricken without prejudice. I remind both parties that, under LCvR 72.3(b), they must file written objections to this Report and Recommendation within 10 days after being served with a copy. Objections must "specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for the objection." LCvR 72.3(b). Failure to file timely objections to the findings and recommendations set forth in this report may waive your right of appeal from an order of the District Court adopting such findings and recommendations. See Thomas v. Arn , 474 U.S. 140 (1985).