           Case: 18-11629   Date Filed: 10/31/2018   Page: 1 of 7


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11629
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:17-cv-01313-MHC



TONY L. WARE,

                                                           Plaintiff-Appellant,

                                  versus

PINE STATE MORTGAGE CORP.,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (October 31, 2018)

Before NEWSOM, BRANCH, and FAY, Circuit Judges.

PER CURIAM:
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      Tony Ware, proceeding pro se, appeals the district court’s order vacating a

bill of costs granted in his favor by the clerk of the court as well as that court’s

subsequent refusal to set aside the vacatur order. Ware argues that he was entitled

to recover his costs under Federal Rule of Civil Procedure 54(d) and that the

district court lacked both subject matter jurisdiction and discretion to vacate the

bill of costs. He contends that the district court lacked subject matter jurisdiction

because it had already remanded his suit back to the state court, and lacked

discretion because Mortgage Electronic Registration Systems’s motion to vacate

the bill of costs was untimely. After careful review of Ware’s arguments, we

affirm the district court’s order vacating Ware’s bill of costs and its refusal to set

this order aside.

                                          I

      We must first address our own jurisdiction over Ware’s appeal. We review

jurisdictional issues de novo. United Steel, Paper & Forestry, Rubber, Mfg.,

Energy, Allied Indus. & Serv. Workers Int’l Union AFL-CIO-CLC v. Wise Alloys,

LLC, 807 F.3d 1258, 1266 (11th Cir. 2015). “[T]he timely filing of a notice of

appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S.

205, 214 (2007). Notice must be filed within 30 days of the entry of the judgment

or order from which the appeal is taken. Fed. R. App. P. 4(a)(1)(A). A motion

under Rule 60 of the Federal Rules of Civil Procedure tolls this 30-day deadline,


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but the motion must be filed no later than 28 days after the entry of the judgment.

Fed. R. App. P. 4(a)(4)(A)(vi). The 30-day deadline to file an appeal runs from the

entry of an order disposing of the Rule 60 motion. Id. 4(a)(4)(A).

      The district court granted MERS’s motion to vacate the bill of costs on

January 16, 2018. On February 12—27 days later—Ware filed a “Motion to Set

Aside Void Order” that specifically cited Rule 60(b)(4). The district court denied

Ware’s motion on March 21, and Ware filed a notice of appeal on April 19.

Ware’s appeal is therefore timely.

      Federal courts of appeals generally have jurisdiction to review only the final

decisions of lower federal courts. 28 U.S.C. § 1291; S.E.C. v. Carrillo, 325 F.3d

1268, 1272 (11th Cir. 2003). A district court order remanding a case to the state

court from which it was removed is not considered “final.” 28 U.S.C. § 1447(d);

see also Whole Health Chiropractic & Wellness, Inc. v. Humana Med. Plan, Inc.,

254 F.3d 1317, 1319 (11th Cir. 2001) (noting that a remand order based on a lack

of subject matter jurisdiction is not reviewable). We have held, however, that we

retain jurisdiction to review a district court’s grant or denial of a party’s costs

incurred as a result of the removal of a case, notwithstanding that the order

remanding the case is not itself appealable. See, e.g., Legg v. Wyeth, 428 F.3d

1317, 1319–20 (11th Cir. 2005). Satisfied as to our jurisdiction over Ware’s

arguments, we turn to their merits.


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                                          II

      We review an order assessing costs for abuse of discretion. Cochran v. E.I.

duPont de Nemours, 933 F.2d 1533, 1540 (11th Cir. 1991). Rule 54(d) provides

that a “prevailing party” should be allowed to recover its costs as a matter of

course unless a federal statute, the Rules, or a court order provides otherwise. Fed.

R. Civ. P. 54(d)(1). The costs that may be taxed in favor of the prevailing party are

specified in 28 U.S.C. § 1920.

      A “prevailing party” under Rule 54(d) is “[u]sually the litigant in whose

favor judgment is rendered . . . .” Head v. Medford, 62 F.3d 351, 354 (11th Cir.

1995) (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 2667). And while our cases “consistently support shifting costs if the

prevailing party obtains judgment on even a fraction of the claims advanced,” id.

(internal citations omitted), there is no “prevailing party”—and thus no cost

award—if there has not been a “material alteration of the legal relationship of the

parties.” Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782,

792–793 (1989).

      There has been no material alteration here. What this Court has described as

the “essential test”—namely, whether there has been a “judicially sanctioned

change in the legal relationship of the parties,” Am. Disability Ass’n, Inc. v.


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Chmielarz, 289 F.3d 1315, 1319 (11th Cir. 2002) (quoting Buckhannon Bd. &

Care Home, Inc. v. W. Virginia Dep’t of Health & Human Res., 532 U.S. 598, 605

(2001))—has not been met because the legal relationship between Ware and

MERS did not change simply as a result of the remand. See Martin v. Franklin

Capital Corp., 546 U.S. 132, 141 (2005) (“Absent unusual circumstances, courts

may award attorney’s fees under § 1447(c) only where the removing party lacked

an objectively reasonable basis for seeking removal.”). Ware was therefore not a

“prevailing party” entitled to costs under Rule 54(d), and the district court did not

abuse its discretion in vacating his bill of costs.

                                           III

      Ware also argues that the district court lacked both subject matter

jurisdiction and discretion to vacate the bill of costs. We disagree. With regard to

the district court’s jurisdiction, “[i]t is well established that a federal court may

consider collateral issues after an action is no longer pending. For example,

district courts may award costs after an action is dismissed for want of

jurisdiction.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990); see

also Bauknight v. Monroe Cty., Fla., 446 F.3d 1327, 1329 (11th Cir. 2006);

Montgomery & Larmoyeux by Montgomery v. Philip Morris, Inc., 19 F. Supp. 2d

1334, 1336 (S.D. Fla. 1998) (“[A] remand order divests a district court of

jurisdiction to reconsider its decision to remand the case. It does not, however,


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divest the district court of its jurisdiction to consider the collateral matter of

attorney’s fees and costs.”).

      Turning to the district court’s discretion to hear MERS’s motion to vacate

the bill of costs, Rule 54(d) provides that a clerk “may tax costs on 14 days’

notice” and that “[o]n motion served within the next 7 days, the court may review

the clerk’s action.” Fed. R. Civ. P. 54(d). MERS filed its motion to vacate the bill

of costs eight days after the clerk of court granted Ware’s request for costs—one

day late under the terms of the rule. But of course district courts have discretion to

consider untimely motions. See Fed. R. Civ. P. 6(b) (“When an act may or must be

done within a specified time, the court may, for good cause, extend the time.”);

Baum v. United States, 432 F.2d 85, 86 (5th Cir. 1970); United States v. Kolesar,

313 F.2d 835, 837 n.1 (5th Cir. 1963) (stating that the time for filing a motion to

retax costs is not jurisdictional and that the district court retained discretion to

address the untimely motion). The district court thus had discretion to consider

MERS’s untimely motion; and as already indicated, we find no abuse.

      In sum, we hold that Ware was not entitled to costs because he was not a

“prevailing party,” that the district court continued to have jurisdiction over the

issue of costs following remand, and that the district court did not abuse its

discretion in addressing MERS’s untimely motion to vacate the bill of costs.

Accordingly, we affirm.


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AFFIRMED.




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