Free USCA Order - District Court of Colorado - Colorado

Case 1:04-cv-01876-RPM

Document 157

Filed 12/10/2007

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UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

KIRK WARREN, Plaintiff - Appellant/ Cross - Appellee, Nos. 06-1305 and 06-1440 v. AMERICAN BANKERS INSURANCE OF FLORIDA, Defendant - Appellee/ Cross - Appellant.

ORDER Filed December 10, 2007

Before KELLY, BALDOCK and BRISCOE, Circuit Judges.

Subsequent to the entry of our decision in Warren v. American Bankers Insurance of Florida, --- F.3d ---, 2007 WL 3151884 (10th Cir. Oct. 30, 2007), the plaintiff-appellant, Kirk Warren, filed an "Itemized and Verified Bill of Costs." The defendant-appellee, American Bankers Insurance of Florida, then filed an "Objection to Itemized and Verified Bill of Costs." As the appellee correctly states in its objection, because we vacated the order of the district court and remanded the case for further proceedings, Fed. R. App. P 39(a)(4) applies and we have discretion as to the taxation of costs. As a preliminary matter, we

Case 1:04-cv-01876-RPM

Document 157

Filed 12/10/2007

Page 2 of 2

note that appellant requests the taxation of the $455.00 fee associated with the filing of the notice of appeal. However, our rule expressly states that "the fee for filing the notice of appeal" is "taxable in the district court for the benefit of the party entitled to costs under this rule." Fed. R. App. P. 39(e)(4). We therefore disallow that part of the tendered bill of costs without prejudice to file a similar request in the district court. As to the remaining $2262.50 in copying costs the appellant asks that we tax against the appellee, we determine that $787.50 is an appropriate assessment of costs against the appellee, based on the overall equities of this case and we accordingly so direct. A copy of this order shall stand as a supplement to the mandate of the court.

Entered for the Court ELISABETH A. SHUMAKER Clerk of Court

by: Douglas E. Cressler Chief Deputy Clerk

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