United States District Court, S.D. Ohio, Eastern Division
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion to Amend
this Court's Opinion and Order granting costs. (ECF No.
99). For the following reasons, Plaintiff's Motion is
Court set forth the factual background of this case in its
Opinion and Order denying Defendants' Motion for
Attorney's Fees (ECF 98) which is hereby incorporated by
reference. In summary, this Court entered summary judgment
for the Defendants on August 26, 2016. (ECF No. 84).
Rutherlan Enterprises, Inc. appealed. While the case was on
appeal, Defendants moved for attorney fees and submitted a
bill of costs. (ECF No. 87). The Clerk set a briefing
schedule on the issue of costs. The Sixth Circuit affirmed
the Court's Order on Summary Judgment on June 21, 2017.
(ECF No. 92)
August 4, 2017, pursuant to Federal Rule of Civil Procedure
54(d)(1), the Clerk denied Defendants' bill of costs.
(ECF No. 94). The Clerk determined the defendants did not
“provide the appropriate supporting document as to
these costs nor have they demonstrated the necessity of the
costs incurred.” Id. In addition, the Clerk
noted that if the defendants wanted the court to review the
clerk's decision, “a motion to review the
Clerk's taxation of costs must be served within seven (7)
days.” Id. Neither party made such motion.
October 31, 2017, this Court held a hearing on the
Defendants' Motion for Attorney Fees. This Court then
denied the request for attorney fees but granted
Defendant's request for Taxation of Costs in the amount
of $1, 071.10. (ECF 98). On January 25, 2018, Plaintiff filed
a Motion for Reconsideration of the Court's order
regarding the bill of costs. (ECF 99). That motion is now
fully briefed and ripe for review.
LAW & ANALYSIS
motion for reconsideration under Federal Rule of Civil
Procedure 59(e) will be granted in limited circumstances. A
court will reconsider its own prior decision “if the
moving party demonstrates: (1) a clear error of law; (2)
newly discovered evidence that was not previously available
to the parties; or (3) an intervening change in controlling
law.” Owner-Operator Indep. Drivers Ass'n, Inc.
v. Arctic Express, Inc., 288 F.Supp.2d 895, 900 (S.D.
Ohio 2003). Courts may also alter or amend a judgment when
necessary “to prevent manifest injustice.”
GenCorp., Inc. v. Am. Int'l Underwriters, 178
F.3d 804, 834 (6th Cir. 1999). Reconsideration due to a
finding of manifest injustice or a clear error of law
requires “unique circumstances, ” such as
complete failure to address an issue or claim. McWhorter
v. ELSEA, Inc., 2006 WL 3483964, at *2 (S.D. Ohio 2006)
(citing Collison v. Int'l Chem. Workers Union, Local
217, 34 F.3d 233, 236 (4th Cir. 1994)). Even for motions
to reconsider interlocutory orders, courts respect the
importance of “grant[ing] some measure of finality . .
. and [of] discourag[ing] the filing of endless motions for
reconsideration” in applying the relevant criteria.
Id. A motion under Rule 59(e) may not be brought to
relitigate issues previously considered by a court or to
present evidence that could have been raised earlier. See
J.P. v. Taft, 2006 WL 689091, at *3 (S.D. Ohio 2006).
Rule of Civil Procedure 54(d) governs awarding costs to
prevailing parties. A prevailing party may recover costs
“[u]nless a federal statute, [the Federal Rules of
Civil Procedure], or a court order provides otherwise.”
Fed. R. Civ. P 54(d)(1). Rule 54 allows the Clerk to
“tax costs on 14 days' notice. On motion served
within the next 7 days, the court may review the clerk's
action.” Fed.R.Civ.P. 54(d)(1). Here, the Defendants
filed no objection upon the Clerk's denial of costs.
Plaintiff argues that Defendants' failure to object
resulted in waiver of their right to have the Court review
the Clerk's denial of costs and that this Court was
without authority to award costs after the Clerk denied them.
Motion to Reconsider argues that this Court improperly
awarded costs to the Defendants after the Clerk had denied
the costs. While the sequence of events in this case is not
the typical procedure for review of costs, the awarding of
costs was not a clear error of law requiring this Court to
reconsider its Order. The Sixth Circuit has held that
“the district court has the inherent and statutory
authority to act on motions related to costs prior to any
action by the clerk . . . .” BDT Products, Inc. v.
Lexmark Intern., Inc., 405 F.3d 415, 428 (6th Cir.
2005), abrogated on other grounds by Taniguchi v.
Kan.Pac. Saipan, Ltd., 566 U.S. 560 (2012). The time
limit for objecting to the Clerk's cost determination
“is not jurisdictional, and courts may, in their
discretion, consider untimely objections.” In re
Paoli R.R. Yard PCB Litigation, 221 F.3d 449, 459 (3d
Cir. 2000). Thus, although the typical process would be for
the Clerk to decide the issue of costs in the first instance,
a district court need not wait for the Clerk to do so and may
consider untimely objections.
is a dearth of case law on this matter, but district court
review of magistrate judges' reports and recommendations
presents an analogous context. Review of magistrate judge
reports and recommendations is governed by 28 U.S.C. §
636. After a magistrate judge issues a report and
recommendation to the district court, parties have fourteen
days to file objections. 28 U.S.C. § 636(b)(1). If
parties file objections, “[a] judge of the [district]
court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The Supreme Court has upheld the Sixth
Circuit's rule that if a party does not timely object,
that party has waived the right to appeal the
magistrate's decision. Thomas v. Arn, 474 U.S.
140, 154 (1985). But “while the statute does not
require the judge to review an issue de novo if no
objections are filed, it does not preclude further review by
the district judge, sua sponte or at the request of
a party, under a de novo or any other
standard.” Id. Although the Federal
Magistrates Act does not have identical language to Federal
Rule of Civil Procedure 54, both 28 U.S.C. § 636 and
Rule 54 have been interpreted to allow for waiver of the
right to have the district court review a decision-in one
instance, a decision from the magistrate and in the other, a
decision from the Clerk. And, as with the Federal Magistrates
Act, the Sixth Circuit has interpreted the deadlines set
forth in Rule 54 so as not to deprive the district court of
jurisdiction to consider the issue of costs.
the Defendants' Motion for Attorney Fees included a
request for costs. Plaintiff's Response in Opposition to
the Motion for Attorney Fees, filed before the Clerk entered
its Order denying costs, noted that “Plaintiffs do not
dispute that Defendants are entitled to allowable costs as
set out in 28 U.S.C. § 2412 and Federal Rule of Civil
Procedure 54(d).” (ECF No. 90 at 2 n.3). This Court
relied on such failure to object in granting the
Defendants' request for costs.