08-4621-cv
     Lafaro v. New York Cardiothoracic Group

 1                     UNITED STATES COURT OF APPEALS
 2
 3                             F OR THE S ECOND C IRCUIT
 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     R OCCO J. L AFARO, M.D., A RLEN G. F LEISHER, M.D., C ARDIAC S URGERY
15                                 G ROUP, P.C.,
16
17                                                     Plaintiffs-Appellants,
18
19                                      –v.–
20
21    N EW Y ORK C ARDIOTHORACIC G ROUP, PLLC, S TEVEN L. L ANSMAN, M.D., D AVID
22         S PIELVOGEL, M.D., W ESTCHESTER C OUNTY H EALTH C ARE C ORPORATION,
23                            W ESTCHESTER M EDICAL C ENTER,
24
25                                                      Defendants-Appellees.
26
27
28
29   Before:
30      C ALABRESI and W ESLEY, Circuit Judges, and D RONEY, District
31                                   Judge. *
32
33        Plaintiffs-appellants’ itemized bill of costs submitted
34   pursuant to Rule 39(d) of the Federal Rules of Appellate


          *
           The Honorable Christopher F. Droney, United States
     District Court for the District of Connecticut, sitting by
     designation.

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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               R ICHARD G. M ENAKER, Menaker & Herrmann, LLP, New
12                      York, NY, for Plaintiffs-Appellants.
13
14               J ORDY R ABINOWITZ, 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   P ER C URIAM:

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, 

(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, 

, 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 

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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