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John M. Floyd & Associates, Inc. v. Ocean City Home Bank

January 15, 2009

JOHN M. FLOYD & ASSOCIATES, INC., A TEXAS CORPORATION, PLAINTIFF(S),
v.
OCEAN CITY HOME BANK, A NEW JERSEY SAVINGS BANK, DEFENDANT(S).



The opinion of the court was delivered by: Rodriguez, Senior District Judge

FOR PUBLICATION

OPINION

This matter comes before the Court on Plaintiff's motion for entry of an order to grant leave to file nunc pro tunc Bill of Costs on behalf of Plaintiff. Plaintiff asserts that a timely attempt to file the Bill of Costs was made, but due to "some aspect of the computer system", the filing was prevented. Defendant opposes the motion, contending that Plaintiff has waived his right to costs pursuant to Local Civil Rule 54.1. For the reasons expressed below, Plaintiff's motion is denied.

I.

The parties are well-familiar with the procedural and factual history of this case; litigation has persisted for over five years now. As such, the Court need only discuss the history relevant to the instant motion.

Defendant was granted summary judgment in 2005 on both its claims stemming from a contractual dispute. See John M. Floyd & Assocs., Inc., v. Ocean City Home Bank, 2005 WL 2000236 (D.N.J. Aug. 18, 2005), rev'd in part, 206 Fed. Appx. 129, 2006 WL 3322194 (3d Cir. Nov. 16, 2006). After the case was remanded for trial by the Third Circuit, a jury found in favor of Plaintiff and awarded damages in the amount of $106, 927.78. In post-trial motions, Defendant renewed its motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), and also moved for a new trial or remittitur in the alternative under Rule 59. See John M. Floyd & Assocs., Inc., v. Ocean City Home Bank, 2008 WL 4534079, *1 (D.N.J. Oct. 2, 2008). Both motions were denied. Id. at *6-*9. By way of cross-motion, Plaintiff moved to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), seeking costs and pre-judgment interest. Id. at *1. Both costs and pre-judgment interest were granted. Id. at *10-*11. In granting Plaintiff costs, this Court stated in pertinent part, "[t]he Local Rules require that the Bill of Costs shall be filed '[w]ithin 30 days after the entry of a judgment allowing costs.' " Id. at *10 (citing L. Civ. R. 54.1(a)).

That judgment was entered October 2, 2008, which pursuant to Local Civil Rule 54.1(a), gave Plaintiff until November 3, 2008 to serve Defendant and "file with the Clerk a Bill of Costs and Disbursements, together with a notice of motion when application will be made to the Clerk to tax the same." See L. Civ. R. 54.1(a). Nothing was served or filed, however, until November 7, 2008. (See, e.g., Br. in Supp. of Mot. for Leave to File Nunc Pro Tunc Bill of Costs on Behalf of Pl., filed 11/07/2008.) On that date, Plaintiff filed its Brief, along with a Notice of Motion Nunc Pro Tunc, Proposed Order, Certification, and Bill of Costs. The Notice of Motion to Have the Clerk Tax Costs and its adjoined proposed Order was not filed until December 8, 2008. (See Notice of Mot. to Have the Clerk Tax Costs and Order to Tax Costs, filed 12/08/2008.)

Explaining the untimely nature of the filing, Plaintiff's attorney states that on the last possible "evening of November 3, 2008 ... [he] attempted to file with the Court the plaintiff's Bill of Costs with attachments in support thereof ... via the Electronic Case Filing ("ECF") system..."*fn1 (Pl. Br. at 1.) Plaintiff's attorney then states that the ECF would not accept his "repeated attempts" at filing these documents, for reasons which remain unknown. (Id. at 2.) By way of Certification, he further states that after his first failed attempt, he "tried to do so at least twice more," both times again resulting in failure. (See Certif. of Counsel on Behalf of Pl., filed 11/07/2008, at ¶ 8.) Because Plaintiff will be prejudiced as a result of the filing error, Plaintiff moves this Court to allow the filing of the Bill of Costs as timely, nunc pro tunc.

Defendant objects and contends that Plaintiff's costs should be waived as untimely, relying in part on Local Civil Rule 54.1(a).*fn2 Notwithstanding any attempts to file the Bill of Costs and attachments (a) through (e) listed above, see n. 1 of this Opinion, Defendant notes that Plaintiff never attempted to file the "Notice of Motion as required by the Rules". (Def. Opp'n Br. at 2.) Defendant further states that Plaintiff failed to avail himself of the alternative filing procedure as provided by Local Civil Rule 5.2, (id. at 2.), and made no attempt to serve him these documents, or alert him of any filing difficulty. (Id. at 3.)

II.

Local Civil Rule 54.1 provides in pertinent part:

(a) Within 30 days after the entry of judgment allowing costs ... the prevailing party shall serve on the attorney for the adverse party and file with the Clerk a Bill of Costs and Disbursements, together with a notice of motion when application will be made to the Clerk to tax the same.

(d) The notice of motion shall specify the hour and date when application to the Clerk to tax the costs will be made, which shall not be less than one nor more than three days from the date of notice if personal service is made and, if service is made by mail, not less than four ...


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