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Gentemann v. NANA Development Corp.

August 12, 2009


The opinion of the court was delivered by: John W. Sedwick United States District Judge


[Re: Dockets 53, 54, and 55]


At docket 53, defendant NANA Development Corporation ("NANA") has applied for an award of costs by filing a Bill of Costs. At docket 54, plaintiffs Shirley and Gardner Gentemann move to strike NANA's Bill of Costs. The motion at docket 54 also asks the court to impose sanctions of $250. NANA responds at docket 70, and plaintiffs reply at docket 73.

At docket 55, NANA moves for an award of attorney's fees. Plaintiffs oppose the motion at docket 67. NANA replies at docket 71. Oral argument would not assist the court in resolving any of the pending matters.


A. Bill of Costs at Docket 53 and Motion at Docket 54

Plaintiffs' complaint pled a state law tort claim for damages and injunctive relief against three defendants. One of them, the Alaska Native Tribal Health Consortium, was a tribal contractor working for the United States which was substituted as a defendant in place of the contractor. Because plaintiffs did not file an administrative claim as required by the Federal Tort Claims Act, their claim against the United States was dismissed without prejudice.*fn1 Thereafter, a second defendant, N.W. Inupiat Housing Authority ("the Housing Authority"), moved to dismiss plaintiffs' claim against it on the ground that the court lacked subject matter jurisdiction over plaintiffs' state law claim against it. Finding no subject matter jurisdiction, the court dismissed the claim against the Housing Authority without prejudice.*fn2 In the course of analyzing the Housing Authority's motion to dismiss, the court observed that it also lacked subject matter jurisdiction over plaintiffs' claim against NANA. Acting sua sponte pursuant to the federal courts' independent obligation to determine the existence of jurisdiction,*fn3 the court dismissed plaintiffs' claim against NANA without prejudice.*fn4

After judgment was entered dismissing plaintiffs' claim against it, NANA filed a Bill of Costs*fn5 which is the subject of the motion at docket 54. NANA's Bill of Costs asks the court to tax costs in the amount of $496.30.

In support of their motion to strike the Bill of Costs, plaintiffs rely upon the proposition that NANA was not a prevailing party within the meaning of Federal Rule of Civil Procedure 54(d) which says: "Unless a federal statute, these rules, or a court order provides otherwise, costs--other than attorney's fees--should be allowed to the prevailing party." Plaintiffs are correct. In Miles v. California,*fn6 the Ninth Circuit explained that when a plaintiff's claim is dismissed for lack of subject matter jurisdiction, for purposes of Rule 54(d) the defendant is not a prevailing party. However, as NANA has noted, the Ninth Circuit also explained that in such circumstances costs may be recovered pursuant to 28 U.S.C. § 1919.*fn7 The Miles court pointed to a significant difference between the rule and the statute: "Unlike Rule 54(d), § 1919 is permissive, [for it] allows the district court to award 'just costs,' and does not turn on which party is the prevailing party."*fn8

To support its request for "just costs" NANA deflects plaintiffs' objection that NANA did not file a motion to dismiss as "irrelevant." NANA then offers as the only reason an award of costs would be "just" the proposition that, with the exception of a single small item, all costs which NANA seeks are of a type which would be taxable under 28 U.S.C. § 1920.*fn9 In support of its request to sanction NANA for seeking an award of costs, plaintiffs' assert that NANA only filed an answer and did not join in the Housing Authority's motion to dismiss.*fn10

Plaintiffs have cited no authority for the imposition of sanctions in the circumstances here. Neither NANA nor plaintiffs have cited any case which discusses what is meant by the phrase "just costs" in the context of § 1919, nor has the court's research discovered any. Of course, the burden of persuasion on the request for costs rests on NANA while the burden of persuasion on the request for sanctions rests on plaintiffs. On the record presented, neither plaintiffs nor NANA have persuaded the court that relief should be awarded.

B. Motion at Docket 55

NANA's motion for an award of attorney's fees depends on the premise that it is a prevailing party entitled to recover fees pursuant to Rule 82 of the Alaska Rules of Civil Procedure. Plaintiffs' contention that Rule 82 may not be applied in federal court is incorrect. In cases where the controlling substantive law is Alaska law, attorney's fees may be awarded pursuant to Rule 82.*fn11 However, the only action taken by the court when it dismissed this case was entirely the result of federal law, not Alaska law. The court resolved no dispute respecting state law, not even a state law standing or jurisdictional issue. In such circumstances, it would seem obvious that it would be inappropriate to award attorney's fees to NANA based on the application of the principles of state substantive law reflected in Rule 82 when the dismissal was dictated entirely by federal law without consideration of any state law issue. To hold otherwise would substitute Rule 82's variation on the "English Rule" allowing recovery of fees by the successful litigant for the "American Rule" which is ...

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