Filed: Jul. 16, 2010
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1622 RICHARD A. RINALDI, Plaintiff - Appellee, v. CCX, INCORPORATED, Defendant – Appellant, and BARRY SILVERSTEIN; DENNIS MCGILLICUDDY, Defendants. No. 09-1671 RICHARD A. RINALDI, Plaintiff - Appellant, v. CCX, INCORPORATED, Defendant – Appellee, and BARRY SILVERSTEIN; DENNIS MCGILLICUDDY, Defendants. Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, J
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1622 RICHARD A. RINALDI, Plaintiff - Appellee, v. CCX, INCORPORATED, Defendant – Appellant, and BARRY SILVERSTEIN; DENNIS MCGILLICUDDY, Defendants. No. 09-1671 RICHARD A. RINALDI, Plaintiff - Appellant, v. CCX, INCORPORATED, Defendant – Appellee, and BARRY SILVERSTEIN; DENNIS MCGILLICUDDY, Defendants. Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1622
RICHARD A. RINALDI,
Plaintiff - Appellee,
v.
CCX, INCORPORATED,
Defendant – Appellant,
and
BARRY SILVERSTEIN; DENNIS MCGILLICUDDY,
Defendants.
No. 09-1671
RICHARD A. RINALDI,
Plaintiff - Appellant,
v.
CCX, INCORPORATED,
Defendant – Appellee,
and
BARRY SILVERSTEIN; DENNIS MCGILLICUDDY,
Defendants.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:05-cv-00108-RJC-DSC)
Argued: May 13, 2010 Decided: July 16, 2010
Before DUNCAN and KEENAN, Circuit Judges, and Arthur L. ALARCÓN,
Senior Circuit Judge of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.
Affirmed in part, reversed in part, and remanded with
instructions by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Duncan and Senior Judge Alarcón joined.
ARGUED: John Robbins Wester, Kate E. Payerle, ROBINSON, BRADSHAW
& HINSON, PA, Charlotte, North Carolina, for Appellant/Cross-
Appellee. Kenneth Todd Lautenschlager, JOHNSTON, ALLISON &
HORD, Charlotte, North Carolina, for Appellee/Cross-Appellant.
ON BRIEF: John C. Lindley III, JOHNSTON, ALLISON & HORD,
Charlotte, North Carolina, for Appellee/Cross-Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
KEENAN, Circuit Judge:
This is an appeal of a judgment entered after a bench trial
in an action brought under the Employee Retirement Income
Security Act (ERISA), 29 U.S.C. §§ 1001-1461. The defendant,
CCX, Inc. (CCX), appeals from the district court’s award of
severance benefits to Richard Rinaldi, CCX’s former president
and chief executive officer (CEO). Rinaldi has filed a cross-
appeal, primarily challenging the district court’s denial of his
request for attorneys’ fees and costs. For the reasons stated
below, we affirm the district court’s award of severance
benefits and its order denying Rinaldi’s request for attorneys’
fees. However, we reverse the district court’s order denying
Rinaldi’s request for costs and remand the case for
reconsideration of an award of costs.
I.
The evidence at trial showed that CCX, a privately held
Delaware corporation, manufactures metal and fiberglass
screening mesh for use in windows, doors, and other building
products. In May 1991, CCX hired Rinaldi as its president and
CEO. Almost three years later, Rinaldi and CCX entered into the
“First Amendment to Employment Agreement” (the Employment
Agreement), which remained in effect during the remainder of
Rinaldi’s employment with CCX. The Employment Agreement
3
provided that Rinaldi was entitled to certain severance
benefits, including salary, term life insurance, and medical
insurance, if his employment was terminated involuntarily
“[o]ther than for cause,” or if CCX sold substantially all its
assets.
As CEO, Rinaldi was required to “report and be responsible
to” CCX’s board of directors. Dennis McGillicuddy was the
chairman of the board, which included Rinaldi and three other
directors. According to McGillicuddy, Rinaldi “had done an
exceptional job running the company.”
In early 2004, CCX began efforts to sell its Mesh Division,
a business unit that represented about ninety percent of CCX’s
assets and employed a majority of the company’s personnel.
Rinaldi sent McGillicuddy a letter stating that a sale of the
Mesh Division would activate the terms of the Employment
Agreement granting Rinaldi severance benefits, if he chose to
end his employment on completion of the sale. Despite
McGillicuddy’s understanding that Rinaldi likely would leave CCX
and be entitled to severance benefits if the Mesh Division were
sold, CCX proceeded with its plans to sell that unit.
Rinaldi led CCX’s negotiating team for the sale of the Mesh
Division. He was assisted in his efforts by McGillicuddy and
Barry Silverstein, who owned a total of eighty percent of CCX’s
4
stock. McGillicuddy and Silverstein also hired other persons to
help Rinaldi effect a sale.
By October 2004, a conflict had developed between Rinaldi
and other members of the negotiating team regarding Rinaldi’s
negotiating tactics and strategic approach. One team member
informed McGillicuddy and Silverstein about concerns regarding
Rinaldi’s approach, and suggested that Rinaldi be removed as
lead negotiator or be discharged from the company.
The tension between Rinaldi and other members of CCX’s
leadership culminated in an October 6, 2004 telephone
conversation involving McGillicuddy, Silverstein, and Rinaldi.
During this conversation, Silverstein told Rinaldi that he was
not satisfied with Rinaldi’s efforts to sell the Mesh Division.
The parties dispute the exact words of Rinaldi’s response, 1 but
McGillicuddy and Silverstein allegedly understood Rinaldi’s
statement as announcing his resignation. McGillicuddy and
Silverstein immediately drafted severance documents reflecting
Rinaldi’s purported action. The locks on the doors of CCX’s
1
Rinaldi testified that he stated, “[i]f you don’t have
confidence in me, fine, I’m not involved [with the sale],” while
Silverstein recalled Rinaldi responding that “[i]f they were
trying to force Jim Shein [a possible replacement for Rinaldi as
lead negotiator for the sale] on him he was out of there.” All
the parties agreed that Rinaldi never used the words “I quit” or
“I resign” during this telephone conversation.
5
headquarters were changed the next day, and Rinaldi was denied
entry to his office.
Following the telephone conversation at issue, Rinaldi
repeatedly stated that he had not resigned, and he took
immediate steps to correct any possible misunderstanding to the
contrary. Nevertheless, CCX denied Rinaldi severance benefits
based on CCX’s determination that he voluntarily ended his
employment.
Rinaldi filed a complaint against CCX in the district
court, initially alleging breach of contract and a violation of
the North Carolina Wage and Hour Act, N.C.G.S. §§ 95-25.1 to –
25.25. The district court later entered an order converting
Rinaldi’s state law claims to an ERISA claim, pursuant to Singh
v. Prudential Health Care Plan, Inc., 335 F.3d 278, 290 (4th
Cir. 2003).
The case proceeded to a bench trial, in which CCX raised
two main issues: (1) whether Rinaldi voluntarily resigned or was
terminated from his employment without cause; and (2) if Rinaldi
was discharged, whether his employment otherwise would have been
terminated for misconduct because of his questionable travel
reimbursement requests allegedly discovered after his departure. 2
2
In this opinion, we will refer to this concept as the
“after-acquired evidence” defense.
6
After hearing the testimony of several witnesses, including
testimony by Rinaldi, McGillicudy, and Silverstein, the district
court found that Rinaldi did not resign voluntarily but was
terminated from his employment. The district court concluded
that even under McGillicuddy and Silverstein’s version of the
October 6, 2004 telephone conversation, Rinaldi’s statement did
not constitute an offer of resignation. Moreover, the district
court reasoned, Rinaldi’s conduct following that phone call, as
well as the financial motivations of McGillicudy and
Silverstein, supported the conclusion that Rinaldi was
involuntarily terminated from his employment.
Critically, in deciding the issue whether Rinaldi departed
voluntarily, the district court found that “several aspects of
Silverstein and McGillicuddy’s testimony [were] not credible.”
The district court also found that McGillicuddy and Silverstein
“seized upon an opportunity to remove” Rinaldi once they
concluded that the sale of the Mesh Division could occur more
quickly without Rinaldi’s involvement. In finding the testimony
of McGillicuddy and Silverstein not credible, the district court
relied in part on its observation of these witnesses’ demeanor
while testifying, as well as the district court’s conclusion
that McGillicuddy and Silverstein’s version of the events was
implausible.
7
After rejecting CCX’s contention that Rinaldi resigned
voluntarily, the district court considered CCX’s after-acquired
evidence defense. According to CCX, it first became aware
during discovery in this case that Rinaldi sometimes used
“frequent flyer miles” for business travel, but later sought and
obtained cash reimbursement from CCX for the listed cost of
those trips. Rinaldi engaged in this practice seventeen times
during his six-year tenure as CEO, and received about $22,000 in
“reimbursements” for alleged expenses that he did not actually
incur.
Rinaldi testified that he selectively used his frequent
flyer miles in this manner for “very rich reward situation[s],”
such as expensive flights from Charlotte, North Carolina to
Pittsburgh, Pennsylvania. For ten such trips between Charlotte
and Pittsburgh, Rinaldi sought cash reimbursement from CCX
despite having used frequent flier miles, and received, on
average, $877.42 for each of these trips. Rinaldi also used
frequent flyer miles, but sought cash reimbursement, for trips
to Milan, Italy, and Cologne, Germany, obtaining reimbursements
of $4,089.37 and $5,226.55, respectively.
Rinaldi did not dispute that he engaged in this practice,
but instead claimed that he discussed the practice with company
auditors and with CCX’s Chief Financial Officer (CFO). However,
Rinaldi did not report these payments as taxable income to the
8
Internal Revenue Service (IRS). After reviewing this evidence,
the district court found that Rinaldi’s “frequent flyer scheme
is dishonest on its face.” The district court also rejected
Rinaldi’s explanation regarding why he did not report this
income to the IRS, finding Rinaldi’s testimony on this issue
“not credible.”
Upon agreement of the parties, the district court applied a
test requiring that CCX prove its claim of after-acquired
evidence by establishing the following three elements:
(1) Rinaldi was guilty of some misconduct of which CCX
was unaware;
(2) the misconduct constitutes “acts of dishonesty” in
connection with CCX’s business, “gross neglect” of his
obligations, or “illegal acts;” and
(3) []CCX would have discharged Rinaldi for cause had
it known of the misconduct.
The district court held that CCX failed to establish the
first and third elements of this test. The district court
concluded that CCX failed to prove the first element, because
CCX did not show that it was unaware of Rinaldi’s travel
reimbursement requests before CCX discharged him. The district
court based this conclusion on its finding that the CFO had
knowledge of Rinaldi’s travel reimbursement requests, and that
the CFO’s knowledge was imputed to CCX.
The district court also held that CCX failed to prove the
third element, because CCX did not show that it would have
terminated Rinaldi’s employment had it been aware of his travel
9
reimbursement scheme. In reaching this conclusion, the district
court made the following credibility determination:
“McGillicuddy’s testimony alone is insufficient to establish the
third [element]. The Court was not persuaded by the self-
serving statements of McGillicuddy that had he known of the
misconduct, he would have terminated Rinaldi for cause.” 3
The district court entered final judgment in favor of
Rinaldi, awarding damages totaling $880,000.00, and prejudgment
interest in the amount of $140,221.25. The district court also
denied Rinaldi’s requests for attorneys’ fees and costs. This
appeal and cross-appeal followed.
II.
We review the district court’s factual findings for clear
error, and we afford the “highest degree of appellate deference”
to those factual findings when they are based on assessments of
3
In further support of its conclusion, the district court
noted that CCX’s bylaws provide the mechanism for removal of
corporate officers. Under the bylaws, the district court
observed, Rinaldi’s wrongdoing was required to have been
presented to the board of directors before Rinaldi could have
been terminated from his employment. However, Rinaldi’s conduct
was not presented to the board at any time. Additionally, the
district court found significant the fact that CCX did not
terminate its CFO, even though CCX had been made aware that the
CFO knew about Rinaldi’s misconduct. Thus, the district court
reasoned, CCX’s decision retaining the CFO rendered implausible
CCX’s claim that it would have discharged Rinaldi for engaging
in the conduct at issue.
10
witness credibility. United States v. Thompson, 554 F.3d 450,
452 (4th Cir. 2009) (applying Fed. R. Civ. P. 52(a)(1)(6)). We
review the district court’s legal conclusions de novo. Nelson-
Salabes, Inc. v. Morningside Dev., LLC,
284 F.3d 505, 512 (4th
Cir. 2002).
CCX does not challenge on appeal the district court’s
holding that Rinaldi was terminated involuntarily from his
employment. Instead, CCX solely argues that the district court
erroneously concluded that CCX failed to establish its after-
acquired evidence defense.
Although we have not previously considered an after-
acquired evidence defense in an ERISA case, we have considered
this defense in other types of civil cases. In our decisions in
those cases, we have applied a three-part test that is
essentially the same as the test employed here by the district
court. See, e.g., Dotson v. Pfizer, Inc., 558 F.3d 284, 298
(4th Cir. 2009) (involving alleged violations of the Family and
Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654); Miller v.
AT&T Corp.,
250 F.3d 820, 837 (4th Cir. 2001) (same); Russell v.
Microdyne Corp.,
65 F.3d 1229, 1240 (4th Cir. 1995) (involving
alleged violations of Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e-2000e-17). The three-part test used by the
district court also is essentially the same as the Supreme
Court’s test for after-acquired evidence set forth in McKennon
11
v. Nashville Banner Publishing Co., 513 U.S. 352, 362-63 (1995),
a case arising under the Age Discrimination in Employment Act of
1967 (ADEA), 29 U.S.C. §§ 621-634.
The parties do not dispute the applicability of this test.
Therefore, in reviewing the district court’s holding that CCX
failed to establish the first and third elements of the after-
acquired evidence test, we must determine whether the district
court clearly erred in finding that CCX failed to establish
that:
(1) Rinaldi was guilty of some misconduct of which CCX
was unaware; [and]
. . .
(3) []CCX would have discharged Rinaldi for cause had
it known of the misconduct.
CCX was required to prove every element of its defense in
order to prevail. Because we conclude that the district court
did not err in finding that CCX failed to establish element
three above, we need not review the district court’s finding on
element one.
With regard to element three, the district court found that
Rinaldi’s travel reimbursement requests were “dishonest on
[their] face.” We decline to disturb this factual finding. 4 The
4
We reject Rinaldi’s argument that the district court erred
in concluding, under the second element of the after-acquired
evidence test, that the travel reimbursement scheme was
(Continued)
12
grounds for termination for cause stated in the Employment
Agreement include “[a]cts of dishonesty (including but not
limited to theft or embezzlement) in connection with the
Company’s business.” Therefore, the conduct at issue plainly
was a ground for termination with cause under the Employment
Agreement.
Although CCX proved that it could have discharged Rinaldi
under the Employment Agreement, CCX also was required to prove
that it would have done so. In concluding that CCX did not
prove that it would have discharged Rinaldi had it known of his
dishonest conduct, the district court was influenced by its
opinion of the witnesses’ credibility. The district court was
not persuaded by “the self-serving statements of McGillicuddy
that had he known of the misconduct, he would have terminated
“dishonest.” Rinaldi’s primary contention is that subjective
dishonesty is required, and that his acts cannot be labeled
dishonest because he lacked the intent to deceive. This
argument lacks merit, because the Employment Agreement prohibits
“acts of dishonesty,” and does not limit such acts to those
involving subjective intent on the part of the actor. Further,
even if the language at issue encompassed only acts of
subjective dishonesty, there is ample evidence in the record
that Rinaldi’s travel reimbursement requests were subjectively
dishonest. As the district court observed, Rinaldi did not
report the airfare reimbursements as taxable income, and the
court found his explanation for failing to do so not credible.
Also, Rinaldi’s own testimony showed that he selectively used
his frequent flyer miles for “very rich reward situation[s]” and
high-value flights.
13
Rinaldi for cause.” Thus, the district court simply did not
believe that Rinaldi’s actions would have caused CCX to
discharge him. Because the district court’s conclusion was
informed by its opinion that McGillicuddy lacked credibility,
that conclusion is entitled to the “highest degree of appellate
deference.” Thompson, 554 F.3d at 452 (citing Fed. R. Civ. P.
52(a)(1)(6)). For this reason, we will not disturb the district
court’s determination, and we hold that the district court did
not err in concluding that CCX failed to establish the third
required element of the after-acquired evidence defense. We
therefore affirm the district court’s holding that Rinaldi was
entitled to severance benefits under the Employment Agreement.
Our holding is not altered by CCX’s additional argument
that the district court impermissibly burdened McGillicuddy’s
testimony with a “heavy cloak of skepticism” in violation of our
decision in Smallwood v. United Air Lines, Inc., 728 F.2d 614
(4th Cir. 1984). We conclude that this argument lacks merit.
In Smallwood, a case decided under the ADEA, we held that
the district court erred in rejecting an employer’s “after-the-
fact rationale” based on the district court’s statement that it
had a “duty” to view the employer’s “after-the-fact” evidence
with skepticism. Id. at 623. We emphasized that the district
court “made no specific findings of fact of [its] own” on the
after-acquired evidence issue and doubted whether the after-
14
acquired evidence was admissible. Id. We explained that,
rather than burdening such “after-the-fact” evidence with a
“heavy cloak of skepticism,” courts should weigh this type of
evidence by the same standards as other testimony.
Id.
This principle expressed in Smallwood, however, is
inapposite to the facts of this case. Although the district
court characterized McGillicuddy’s testimony as “self-serving,”
the district court did not “burden” such testimony with
skepticism or otherwise hold CCX to a higher standard of proof.
Instead, unlike the district court in Smallwood, the district
court here made specific factual findings, supported by the
record, that justified its application of the after-acquired
evidence doctrine. Moreover, any degree of skepticism expressed
by the district court likely was derived in part from its
express findings that McGillicuddy lacked credibility on other
key issues. 5 Therefore, we conclude that the district court,
consistent with our decision in Smallwood, considered the
testimony relating to CCX’s after-acquired evidence defense
5
CCX additionally contends, however, that the credibility
concerns of the district court relating to McGillicuddy’s
testimony on the “terminated or resigned” issue are not before
us, because CCX has not appealed from the court’s holding on
that issue. We reject this argument, because it effectively
asks us to ignore the numerous occasions throughout the district
court’s opinion in which the court expressly found that
McGillicuddy was not a credible witness.
15
according to the same standards that the district court applied
throughout the trial.
III.
Next, we address the remaining issues raised by Rinaldi in
his cross-appeal. 6 Rinaldi argues that the district court erred
in denying his requests for attorneys’ fees and costs. We
address these issues separately.
A.
As we stated in Williams v. Metropolitan Life Insurance
Co., a district court in an ERISA action may, in its discretion,
award reasonable attorneys’ fees to either party under 29 U.S.C.
§ 1132(g)(1), if that party has achieved “‘some degree of
success on the merits.’” ___ F.3d ___, No. 09-1025, slip op. at
17-18 (4th Cir. June 30 2010) (quoting Hardt v. Reliance Std.
Life Ins. Co., No. 09-448, ___ U.S. ___, 130 S. Ct. 2149, 2152
(2010)). We review a district court’s award of attorneys’ fees
to an eligible litigant to determine whether the court has
abused its discretion. Williams, ___ F.3d at ___, slip op. at
17; Mid Atl. Med. Servs., LLC v. Sereboff,
407 F.3d 212, 221
(4th Cir. 2005). The district court’s factual findings in
6
As discussed previously, we reject Rinaldi’s argument that
the district court erred in concluding that Rinaldi’s travel
reimbursement requests were “dishonest on [their] face.”
16
support of such an award are reviewed for clear error.
Williams, __ F.3d at __, slip op. at 17; Hyatt v. Shalala, 6
F.3d 250, 255 (4th Cir. 1993).
As required by the decision in Hardt, we first consider
whether Rinaldi achieved “some degree of success on the merits”
in the district court. Because the district court found in
Rinaldi’s favor and awarded him the severance benefits due under
the Employment Agreement, we conclude that Rinaldi was eligible
for an award of attorneys’ fees. See Hardt, ___ U.S. at ___,
130 S.Ct. at 2158.
Although Rinaldi was eligible for an award of reasonable
attorneys’ fees, the district court retained the discretion to
decline to award Rinaldi such fees. In Williams, we restated
the familiar guidelines that assist a district court’s
discretionary determination whether attorneys’ fees should be
awarded to an eligible litigant. These guidelines include the
following five factors:
(1) degree of opposing parties’ culpability or bad
faith;
(2) ability of opposing parties to satisfy an award of
attorneys’ fees;
(3) whether an award of attorneys’ fees against the
opposing parties would deter other persons acting
under similar circumstances;
(4) whether the parties requesting attorneys’ fees
sought to benefit all participants and beneficiaries
of an ERISA plan or to resolve a significant legal
question regarding ERISA itself; and
(5) the relative merits of the parties’ positions.
17
Williams, __ F.3d at __, slip op. at 19 (quoting Quesinberry v.
Life Ins. Co. of N. Am., 987 F.2d 1017, 1029 (4th Cir. 1993) (en
banc)).
In the present case, the district court considered these
factors, and concluded that Rinaldi should not be awarded
attorneys’ fees. We disagree with Rinaldi’s contention that the
district court misapplied these factors.
Initially, we observe that these factors provide “general
guidelines,” rather than a “rigid test.” Williams, ___ F.3d at
___, slip op. at 19; Quesinberry, 987 F.2d at 1029. In
determining whether to award Rinaldi attorneys’ fees, the
district court was entitled to consider the fact that Rinaldi
had engaged in some dishonest conduct to the prejudice of his
employer, CCX. The district court also was permitted to
consider the fact that because the Employment Agreement was
drawn uniquely for Rinaldi, there were no other members of that
plan who could have derived a benefit from Rinaldi’s legal
action. Further, because the plan was unique to Rinaldi, the
deterrent value that an award of attorneys’ fees would have for
“other persons acting under similar circumstances” was less
significant. Finally, the district court correctly concluded
that there was no “significant legal question regarding ERISA
itself” at issue.
18
In light of these considerations, we cannot conclude that
the district court abused its discretion in declining to award
Rinaldi attorneys’ fees. We therefore affirm the district
court’s holding denying Rinaldi’s request.
B.
We next address Rinaldi’s argument that the district court
erred in denying his request for costs. We agree with Rinaldi
that there is a presumption in favor of awarding costs to a
prevailing party. Under Rule 54(d)(1) of the Federal Rules of
Civil Procedure, costs “should be allowed to the prevailing
party” unless a federal statute provides otherwise. See Cherry
v. Champion Int’l Corp., 186 F.3d 442, 446 (4th Cir. 1999). As
we stated in Williams, the ERISA statute does not alter this
general rule in favor of presumptively awarding fees to the
prevailing party, and instead expressly permits a district court
to award costs in the court’s discretion. ___ F.3d at ___, slip
op. at 22 (citing 29 U.S.C. § 1132(g)(1)). We therefore agree
with Rinaldi’s argument that he was entitled to a presumption in
favor of costs.
We observe that the district court did not afford Rinaldi
this presumption. We also note that the district court did not
conduct a separate analysis in declining to award Rinaldi costs.
Instead, the district court analyzed the appropriate standard
for an award of attorneys’ fees, concluded that Rinaldi was not
19
entitled to attorneys’ fees, and then summarily rejected
Rinaldi’s request for costs. The district court’s treatment of
Rinaldi’s request for costs, therefore, conflicts with our
holding in Teague v. Bakker, in which we stated that if a
district court chooses to depart from the general rule favoring
an award of costs to the prevailing party, the court must
justify its decision by “articulating some good reason for doing
so.” 35 F.3d 978, 996 (4th Cir. 1994) (citations omitted).
Because the district court did not state any reason for its
decision, we reverse the district court’s holding denying
Rinaldi’s request for an award of costs, and remand the case to
the district court for reconsideration of Rinaldi’s request in
light of the standard that we have discussed here.
IV.
For these reasons, we reverse the part of the district
court’s judgment denying Rinaldi an award of costs, and remand
20
the case to the district court for reconsideration of that
issue. We affirm the balance of the district court’s judgment. 7
AFFIRMED IN PART,
REVERSED IN PART, AND
REMANDED WITH INSTRUCTIONS
7
Rinaldi has also requested an award of reasonable
attorneys’ fees and costs that he incurred in responding to
CCX’s appeal and in pursuing his cross-appeal. We observe that
Rinaldi has failed to comply with the requirements of Federal
Rule of Appellate Procedure 39(d) and Local Rules 39(b) and
46(e). Accordingly, we decline to consider Rinaldi’s requests
at this time.
21
