635 F.2d 700
26 Fair Empl.Prac.Cas. 1618,
24 Empl. Prac. Dec. P 31,406
Eldwyn LEWIS, Appellant,
ST. LOUIS UNIVERSITY, Appellee.
United States Court of Appeals,
Submitted Dec. 8, 1980.
Decided Dec. 15, 1980.
Doris Gregory Black, St. Louis, Mo., for appellant.
Thomas C. Walsh, Michael P. Burke, St. Louis, Mo., for appellee.
Before HEANEY, ROSS and McMILLIAN, Circuit Judges.
Appellant Eldwyn Lewis appeals from an award of costs to appellee Saint Louis University by the district court.1 On the day set for trial, appellant obtained dismissal without prejudice of his complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., After the dismissal appellee moved under Rule 60, Fed.R.Civ.P., for costs of the action; the record shows no opposition by appellant to this motion in the district court and it was granted. Appellee was awarded costs of $1,326.53.
For reversal appellant argues that the award of costs was an abuse of the district court's discretion. Having failed to oppose the grant of costs below, appellant may prevail in this court only if the award was plain error. See Morrow v. Greyhound Lines, Inc., 541 F.2d 713, 724 (8th Cir. 1976). We find no plain error. An award of costs is certainly within the discretion of the district court. Even if we were to agree with appellant that the exercise of that discretion is limited to cases where the action is frivolous, unreasonable or without foundation,2 we cannot say on this record that the district court could not have found against appellant under that standard. Appellant obtained dismissal of the action on the day of trial without giving prior notice to appellee and did not present to the district court any objection to an award of costs in the amount appellee claimed to be required in preparation for trial. We do not find substantial injustice has occurred in these circumstances.
Accordingly, the judgment of the district court is affirmed.
The Honorable William L. Hungate, United States District Judge for the Eastern District of Missouri
The cases are divided on the proper standard for an award of costs to defendants in Title VII cases. Compare Dual v. Cleland, 79 F.R.D. 696 (D.D.C.1978), and Jaspers v. Alexander, 15 Fair Empl.Prac. Cases 1234, 1238-39 (D.D.C.1977), with Jones v. City of San Antonio, 568 F.2d 1224, 1226 (5th Cir. 1978), and EEOC v. Johnson Co., 18 Fair Empl.Prac. Cases 903, 905 (D.Minn.1978)