United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
This matter is before the Court on plaintiffs' "Motion to Review Clerk's Order Taxing Costs" (the "Motion, " ECF 117). The issues have been fully briefed,  and no hearing is necessary to resolve them. See Local Rule 105.6. For the reasons that follow, I will grant plaintiffs' Motion.
In 2010, William Meyers, Sr., Anna Mae Meyers, and William Meyers, Jr., as personal representative of the estate of decedent Ryan Meyers,  brought a civil rights suit under federal and Maryland against Baltimore County and three of its police officers alleging, inter alia, use of excessive force that led to the death of Ryan Meyers in 2007. ECF 1, ECF 3. Judge Benson Legg granted summary judgment in favor of defendants on all claims. See Meyers v. Baltimore Cnty., Md, 814 F.Supp.2d 552 (D. Md. 2011) (ECF 45, ECF 46.). Plaintiffs appealed to the U.S. Court of Appeals for the Fourth Circuit, which reversed the district court's entry of summary judgment as to Officer Stephen Mee, and remanded the case for further proceedings. See Meyers v. Baltimore Cnty., Md., 713 F.3d 723 (4th Cir. 2013).
Plaintiffs filed a bill of costs with the Fourth Circuit, seeking $1, 366.80 for costs incurred on appeal. On February 13, 2013, the Clerk of Court for the Fourth Circuit awarded costs for the full amount sought, finding that plaintiffs "sufficiently prevailed on appeal as to authorize an award of costs, " and ordered that the taxed costs be added to the Fourth Circuit's mandate pursuant to Fed. R. App. P. 39(d). Order Granting Costs, Pla. Ex. 3, ECF 117-3. Defendants paid $1, 366.80 to plaintiffs on August 7, 2013. ECF 112 at 9, 12.
On remand, as a result of Judge Legg's retirement, the case was reassigned to me on February 4, 2013. In November 2013, the case proceeded to a jury trial solely against Officer Mee. On November 25, 2013, following a jury verdict in favor of Officer Mee, I entered judgment in his favor. ECF 110. Officer Mee then filed a bill of costs with the Clerk of this Court. ECF 112. On February 11, 2014, the Clerk issued an order granting costs to defendant as the prevailing party in the action, in the amount of $4, 371.95 ("Order, " ECF 116). The award included $1, 366.80 sought for reimbursement of costs taxed against defendants by the Fourth Circuit and $42.20 sought for the cost of defendants' appellate brief. ECF 116. The docket entry stated: "Motion for Review due by 2/21/14." Notice of Electronic Filing, Pla. Ex. 1, ECF 117-1 at 2.
On February 21, 2014, plaintiffs filed the present Motion, contending that the Clerk erred by granting reimbursement of the costs previously taxed by the Fourth Circuit and the cost of the appellate brief. See Motion, ECF 117 at 1. Accordingly, plaintiffs seek to reduce the Order by $1, 409.00, which would reduce the total amount of the award to $2, 962.95. See id. at 2.
Standard of Review
Fed. R. Civ. P. 54(d) provides, in pertinent part: "Unless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party." The Fourth Circuit has determined that "the rule creates the presumption that costs are to be awarded to the prevailing party." Cherry v. Champion Int'l Corp., 186 F.3d 442, 446 (4th Cir. 1999). Thus, "it is incumbent upon the unsuccessful party to show circumstances sufficient to overcome the presumption favoring an award of costs to the prevailing party." Wyne v. Medo Indus., Inc., 329 F.Supp.2d 584, 586 (D. Md. 2004) (citing 10 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2668 at 232 (3d ed. 1998)). The court reviews de novo the clerk's order taxing costs. Mitchell-Tracey v. United Gen. Title Ins. Co., 839 F.Supp.2d 821, 825 (D. Md. 2012) (citing Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 233-34 (1964)); Young v. United Parcel Serv., Inc., No. DKC-08-2586, 2014 WL 858330, at *1 (D. Md. Mar. 4, 2014). Of import here, a motion for review of an award of costs must be filed within seven days after the Clerk taxes costs. Fed.R.Civ.P. 54(d).
A. Timeliness of Motion for Review
Plaintiffs filed the Motion ten days after costs were awarded by the Clerk. As a threshold matter, defendant opposes plaintiffs' Motion as untimely, and asserts that plaintiffs' Motion should be denied on this basis. ECF 118.
"Failure to timely move for the Court's review of a Clerk's order taxing costs results in waiver of the right of review of that order." Mitchell-Tracey, 839 F.Supp.2d at 825 (citing Bailey v. Mid Atl. Isotopes/Geodax, 66 F.Appx. 485, 486 (4th Cir. 2003)). Notwithstanding the waiver, Rule 54(d)(1)'s seven-day limitations period is not jurisdictional and a court, in its discretion, may consider untimely objections to the clerk's taxation of costs. Mitchell-Tracey, 839 F.Supp.2d at 825; see In re Paoli R.R. Yard PCB Litigation, 221 F.3d 449, 459 (3d Cir. 2000); Soberay Mach. & Equip. Co. v. MRF Ltd., Inc., 181 F.3d 759, 770 (6th Cir. 1999); Lorenz v. Valley Forge Ins. Co., 23 F.3d 1259, 1261 (7th Cir. 1994).
Plaintiff contends that the Motion is not untimely because Rule 6(d) extends the date by which a Rule 54(d) motion is due. Under Rule 6(d), "When a party may or must act within a specified time after service... 3 days are added after the period would otherwise expire." Because Rule 54(d) states that the moving party must act "within the next seven days" after the Clerk taxes costs-not after service of the order-Rule 6(d) does not apply to Rule 54(d) motions. See Hillside Prods., Inc. v. Cnty. of Macomb, 448 F.Appx. 592, 593 (6th Cir. 2012) ("Federal Rule of Civil Procedure 54(d) does not compute the period for filing a motion to review an order taxing costs from the date of service."); Lorenz, 23 F.3d at 1261 (explaining that the party that filed an objection to the clerk's taxation of costs did "not have a further three days... for the time starts with the entry of the clerk's order rather than service of that order"); Mitchell-Tracey, 839 F.Supp.2d at 825 n.6 (collecting cases); see also ...