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722 F.2d 207

Docket No. 82-4115.

Nelson v. James

Fifth Circuit Court of Appeals

Decided Jan. 3, 1984.

Fifth Circuit Court of Appeals · decided 1984-01-03

2 counsel of record

Key passage — most relied on by later courts

“To be sure, claims for costs should be submitted promptly after rendition of judgment on appeal; the 14-day limit subserves that policy, and should be scrupulously observed. Yet it is evident that the circumstances of particular situations may satisfactorily explain tardiness, and may call for an allowance of costs nonetheless. The court in its discretion may accommodate such a situation, for it is empowered for good cause shown to enlarge the period within which the bill of costs may be filed.”

quoted by 5 later decisions, including Knoblauch v. Commissioner, George T. Knoblauch and Julia Knoblauch v. Commissioner of Internal Revenue

“within 14 days after the entry of judgment,”

quoted by 2 later decisions, including Knoblauch v. Commissioner, Apex Oil Company v. Belcher Company of New York Inc Shea & Gould

Relies on Ratchford v. Gay Lib · Seaboard Shipping Corp. v. Moran Inland Waterways Corp. · Penn Central Transportation Co. v. New York City

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1984-01-03

How this case has been cited

Cited by 16 later decisions — most recently May 2006

8 federal appellate · 2 state decisions

70198419902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Dorizas & Grantham, Angelo J. Dorizas, Jackson, Miss., for plaintiffs-appellants.

¶2Sumners, Hickman & Rayburn, S.T. Rayburn, Will A. Hickman, Oxford, Miss., for defendant-appellee.

¶3*208Before RUBIN, JOHNSON and WILLIAMS, Circuit Judges.

¶4PER CURIAM:

¶5The principle involved rather than the principal in dispute occasions this opinion. A successful appellant filed a timely bill of costs and was allowed the full amount claimed. Thereafter we issued our mandate to the district court. The appellant’s counsel then noticed that he had failed to include $30.00 in costs and filed an amended bill of costs. The appellee promptly rejoined that, having entered judgment and issued our mandate, we lack jurisdiction. While we do not lack the power to withdraw the mandate and then to issue a new judgment and mandate, we have better judgment than to do so in this ease for the appellant’s counsel has shown no good reason why we should.

¶6The time limit for assessment of costs prior to issuance of the mandate is not jurisdictional. United States v. Kolesar, 313 F.2d 835, 836 n. 1 (5th Cir.1963). And a court of appeal has inherent power to recall its mandate.1 However, our Local Rules provide that we shall not recall a mandate “except to prevent injustice.” Local Rule 41.2, Fifth Circuit Court of Appeals. This codifies the prevailing jurisprudence.2

¶7When counsel files a cost bill out of time, but before the mandate is issued, a question similar to the one here invoked is raised. Fed.R.App.P. 39(d) requires a party who desires taxation of costs to “state them in an itemized and verified bill of costs, which he shall file with the clerk, with proof of service, within 14 days after the entry of judgment.” A court of appeals is empowered “for good cause shown” to enlarge the time limits prescribed by the Federal Rules of Appellate Procedure. Fed.R. App. p. 26(b). But “inattendance to office chores and good faith mistakes are not sufficient ■ to show good cause.” Mollura v. Miller, 621 F.2d 334, 335-36 (9th Cir.), cert. denied, 446 U.S. 918, 100 S.Ct. 1852, 64 L.Ed.2d 272 (1980); Accord Denofre v. Transportation Insurance Rating Bureau, 560 F.2d 859, 860 (7th Cir.1977); Laffey v. Northwest Airlines, Inc., 587 F.2d 1223, 1224 (D.C.Cir.), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792; Stern v. U.S. Gypsum, Inc., 560 F.2d 865, 866 (7th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977).

¶8Such inadvertence or error provides even less reason to recall a mandate in order to assess additional costs. The sole reason advanced by appellants’ counsel for his incorrect bill is that the costs were misstated as a result of “typographical error.” The error may have been clerical (counsel says he paid docket costs of $65.00 in each of two suits but included only $50.00 per suit in his bill of costs), but it was hardly typographical. No adequate excuse is given for making the error nor any good cause shown to recall our mandate. Absent sufficient reason to do so, we will not undo normal procedures to remedy counsel’s inadvertence.

¶9The motion is, therefore, DENIED.

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