         11-3157
         Javier v. Deringer-Ney Inc.




                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
     MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1               At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2       Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3       on the 26th day of October, two thousand twelve.
 4
 5       PRESENT:
 6                   AMALYA L. KEARSE,
 7                   ROSEMARY S. POOLER,
 8                   BARRINGTON D. PARKER,
 9                         Circuit Judges.
10       ____________________________________________________________
11
12       Mario A. Javier,
13
14                                     Plaintiff-Appellant,
15
16                      -v.-                                                         11-3157
17
18       Deringer-Ney Inc.,
19
20                               Defendant-Appellee.
21       ___________________________________________________________
22
23       FOR APPELLANT:                Mario A. Javier, pro se, Hartford, CT.
24
25       FOR APPELLEE:                 Jean E. Tomasco, Kori Termine Wisneski, Robinson & Cole LLP,
26                                     Hartford, CT.
27
28
29              Appeal from orders of the United States District Court for the District of Connecticut
30       (Bryant, J.).
31
 1         UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
 2   DECREED that the June 11, 2011, June 13, 2011, and July 22, 2011 orders of the district court
 3   are AFFIRMED.
 4
 5           Appellant Mario A. Javier, pro se, appeals from the district court’s: (1) June 11, 2011
 6   order denying his motion for a return of a cash bond in the amount of $500 posted as security for
 7   costs, pursuant to District of Connecticut Local Rule 83.3; (2) June 13, 2011 order denying his
 8   motion to compel the Appellee to produce certain documents; (3) June 13, 2011 order denying
 9   his motion for “articulation” of the appellee’s bill of costs, and an extension of time to reply to
10   Appellee’s objections to his motion for return of the bond; and (4) July 22, 2011 order granting
11   Appellee’s motion for costs and awarding $3,203.90, and ordering that the bond be turned over
12   to Appellee. We assume the parties’ familiarity with the underlying facts, procedural history,
13   and specification of issues for review.
14
15           Appellant’s brief largely argues that the district court erred in granting summary
16   judgment and dismissing his complaint by judgment entered October 1, 2009, and that this Court
17   erred in affirming the district court’s judgment. See Javier v. Deringer-Ney Inc., 419 F. App’x
18   100 (2d Cir. 2011). Those arguments are barred by the law-of-the-case-doctrine. See United
19   States v. Plugh, 648 F.3d 118, 123 (2d Cir. 2011) (“As a general matter, this Court will adhere to
20   its own decision at an earlier stage of the litigation.”) (internal quotation marks omitted).
21   Appellant has not called to our attention any reason for deviating from this general principle.
22
23           “The decision to award costs pursuant to Rule 54(d)(1) . . . rests within the sound
24   discretion of the district court, and such decisions will be reviewed by this [C]ourt only for abuse
25   of discretion.” See Dattner v. Conagra Foods, Inc., 458 F.3d 98, 100 (2d Cir. 2006) (internal
26   quotation marks and citation omitted). “In addition, because Rule 54(d) allows costs ‘as of
27   course,’ such an award against the losing party is the normal rule obtaining in civil litigation, not
28   an exception.” Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001). Costs may be denied due
29   to the misconduct of the prevailing party, the public importance of the case, the difficulty of the
30   issues, or “the losing party’s limited financial resources.” Id. However, the burden is on the
31   losing party to show that costs should not be imposed. Id.
32
33           Appellant does not argue that the public importance of the case or the difficulty of the
34   issues warranted the denial of costs. Appellant argues that Appellee’s alleged misconduct
35   warranted denying it costs, but his argument is without merit. To the extent his argument rests
36   on Appellee’s actions during the discovery process, including the alleged withholding of
37   documents he sought after the judgment had been entered, those issues were decided in
38   Appellee’s favor, and there is no indication that Appellee engaged in any misconduct during the
39   discovery process. Appellant’s argument is also without merit to the extent it relies on Appellee
40   stating, in response to the motion for return of the bond, that Appellant’s claim was “frivolous.”
41   While there has been no finding at any stage that Appellant’s complaint was frivolous,
42   Appellee’s single charge of frivolousness does not rise to the level of misconduct warranting the
43   denial of costs. Significantly, Appellee’s statement occurred after the judgment was entered, and
44   did not add to the litigation costs.
45
46
 1           We take notice of the fact that a magistrate judge granted Appellant leave to proceed in
 2   forma pauperis (“IFP”) on appeal. Nevertheless, Appellant’s indigence does not warrant
 3   departure from the usual practice of awarding costs. Whitfield, 241 F.3d at 270 (“As a general
 4   matter a district court may deny costs on account of a losing party’s indigency, but indigency per
 5   se does not automatically preclude an award of costs.”); see also Feliciano v. Selsky, 205 F.3d
 6   568, 571 (2d Cir. 2000) (noting that other circuits have allowed for taxation of appellate costs
 7   against indigent appellants); 28 U.S.C. § 1915(f)(1) (stating that “[j]udgment may be rendered
 8   for costs at the conclusion of [a] suit or action [brought pursuant to the IFP statute] as in other
 9   proceedings”). Finally, while Appellants argues that costs should not be awarded because his
10   complaint was not frivolous, costs are awarded as a matter of course to the winning party, and no
11   finding of frivolousness is required. See Whitfield, 241 F.3d at 270; see also Fed. R. Civ. P.
12   54(d)(1) (stating that costs “should be allowed to the prevailing party” unless a statute, rule or
13   court order states otherwise).
14
15           We find no abuse of discretion in the district court’s denial of Appellant’s motion to
16   return the bond, or the awarding of the bond to offset Appellee’s costs. See Selleti v. Carey , 173
17   F.3d 104, 110 (2d Cir. 1999) (“We review for abuse of discretion the district court’s decision[]. .
18   .to require a bond or other security costs . . .”). The purpose of the bond was to provide security
19   for the litigation costs. See D. Conn. Local R. 83.3. Appellant provides no alternative for
20   Appellee to receive its costs, and even given Appellant’s indigency awarding the bond to
21   Appellee was not error. To the extent Appellant challenges the district court’s order denying his
22   motion to compel discovery, the discovery issue was decided in the earlier appeal and is not
23   relevant to the issue of costs. Appellant did not sufficiently argue in his brief that the district
24   court erred in deciding the motion for return of the bond without granting Appellant’s motion for
25   articulation or granting an extension of time; those issues are therefore waived. See Norton v.
26   Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are
27   considered waived and normally will not be addressed on appeal.”). In any event, there was no
28   error in the district court’s underlying decision to deny the motion for return of the bond.
29
30          We have considered Appellant’s remaining arguments and find them to be without merit.
31
32           For the foregoing reasons, the June 11, 2011, June 13, 2011, and July 22, 2011 orders of
33   the district court are hereby AFFIRMED.
34
35
36                                                        FOR THE COURT:
37                                                        Catherine O’Hagan Wolfe, Clerk
38
39
40
