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concluding that inmate's double jeopardy argument lacked merit in that the district court correctly reasoned that his custody classification "is not punishment, but rather a method for housing inmates based on their behavior"
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D.C. CV-89-00439-ACK
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted on April 27, 1999.
On Appeal from the United States District Court for the District of Hawaii Alan C. Kay, District Judge, Presiding.
Before FARRIS, NOONAN, and GRABER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Background
On September 15, 1995, the district court entered final judgment in this case, expressly vacating the judgment of July 5 that had been mistakenly entered due to a clerical error. The July 5 judgment expressly excluded the claims of four plaintiffs, all of whom subsequently settled, the last settlement occurring on August 4, 1995.
After July 5, but prior to September 15, all Defendants filed motions for taxation of costs. Costs were then taxed by the clerk. None of the parties re-filed or amended their motions after re-entry of final judgment. We must therefore decide whether the taxation of costs was proper when Bills of Costs were filed after the erroneous entry of judgment, but not re-filed after judgment was properly re-entered.
Discussion
I. Timeliness of appeal
Initially, we affirm the district court's grant of an extension of time to file a notice of appeal. We review such decisions for an abuse of discretion. See Marx v. Loral Corp., 87 F.3d 1049, 1053 (9th Cir.1996). We do not ignore the cases on which Defendants rely. See Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411 (9th Cir.1986) (denial of extension affirmed where attorney was on vacation and staff assumed another attorney would file the appeal); Oregon v. Champion Int'l Corp., 680 F.2d 1300, 1301 (9th Cir.1982) (denial of extension affirmed where staff sent notice of appeal to wrong court). Those cases do not require that an extension be denied in similar circumstances. Although reasonable minds may differ on what is excusable neglect, we do not find an abuse of discretion in granting the motion for extension based on the reasons stated.
II. Prevailing Parties Under Rule 54
Whether the district court had jurisdiction to tax costs, the core of Plaintiffs' argument, turns on whether Defendants can be considered "prevailing parties" under Federal Rule of Civil Procedure 54. The rule contemplates that costs will be awarded "as of course" to the prevailing party. Commentators have stated that it is generally "understood that the appropriate time for taxing costs is after a decision has been reached in the action." 10 Wright, Miller & Kane, Federal Practice and Procedure § 2679 (3rd ed.1998) (citing cases). Neither the rule nor the comment specifically require the entry of a valid final judgment. In contrast, when Rule 54 refers to attorneys' fees, it then specifically requires the "entry of judgment." Rule 54(d)(2)(B).
We are guided by our decision in Zenith Ins. Co. v. Breslaw, 108 F.3d 205 (9th Cir.1997). In Zenith, we awarded prevailing party status to a group of doctor defendants. The doctors were found to have participated in a conspiracy, but the jury also found that the conspiracy caused no damages to the plaintiff, a requirement for recovery under RICO. Id. at 206-07. Since the plaintiffs were unable to establish their case, we granted prevailing party status to the doctor-defendants. Id. While the facts of Zenith are not "on all fours" with those before us, that decision demonstrates that each case should be analyzed individually to determine whether there is a prevailing party. No bright line rule is required.
Plaintiffs argue the Tenth Circuit decision in Woodmen Accident & Life Ins. Co. v. Bryant, 784 F.2d 1052 (10th Cir.1986) requires entry of valid final judgment for prevailing party status to be accorded. Woodmen is unpersuasive in the instant context because that case concerned an interlocutory appeal while the defendants still had claims remaining in the district court. The resolution of those claims had the potential to affect the amount of costs awarded, so there had not been a sufficient decision in the case to award prevailing party status. Id. at 1057.
We are also guided by the Supreme Court's decision in FirstTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 276 (1991). In FirstTier, the Supreme Court held that a bench ruling satisfied the definition of "decision" (in Fed. R.App. Pro. 4(a)(2)) in that the oral ruling "announce[d] a decision purporting to dispose of all off FirstTier's claims." Id. at 277. This was enough to make the subsequent filing of a notice of appeal timely, even though judgment was officially entered after the notice was filed.
Despite the clerical mistake leading to a premature entry of judgment, Defendants were properly treated as prevailing parties. Although the local rules may purport to require more, Defendants prevailed on the substantive claims against them and were entitled to costs as prevailing parties.
IV. Proration of Costs
Plaintiffs contend that if costs were properly awarded, the amount should have been reduced to reflect the settling parties. The district court remanded the issue of proration of costs to the special master for a second report. The special master found the costs to be reasonable even after discounting for the settling parties. This finding was adopted in full by the district court. It is reviewed for an abuse of discretion. See Russian River Watershed Protection Comm. v. Santa Rosa, 142 F.3d 1136, 1144 (9th Cir.1998).
There was no abuse of discretion. The special master's review of the issue was thorough. He performed basic calculations and concluded that the number of copies taxed was reasonable even after accounting for the settling plaintiffs.. He found the calculations proposed by Plaintiffs to be guesswork and "mathematical gymnastics." Nothing presented by Plaintiffs persuades us that this was an erroneous decision.
V. Sanctions
Defendants argue the district court erred in refusing to sanction Plaintiffs' attorney under 28 U.S.C. § 1927, which authorizes sanctions against an attorney who "unreasonably and vexatiously" multiplies the proceedings. The district court is in a unique position to determine whether sanctions are appropriate. Its refusal to award sanctions is reviewed only for an abuse of discretion. See Murdock v. Stout, 54 F.3d 1437, 1444 (9th Cir.1995). The district court stated that "[a]lthough the issue of costs has been litigated vigorously and for quite some time, the Court does not find that Plaintiffs' jurisdictional argument was frivolous, does not find that their proration argument is frivolous and does not find at this time that attorney Loricchio has acted recklessly or in bad faith to multiply proceedings unreasonably and vexatiously." Nothing has been presented to refute the district court's characterization of the acts complained of as "vigorous litigation," not harassment.
AFFIRMED.