In re: Derailment Cases
No. 05-1187
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: May 11, 2005 Filed: August 2, 2005 (corrected August 11, 2005)
Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.
Appeal from the United States District Court for the District of Nebraska.
WOLLMAN, Circuit Judge.
Various residents of Scottsbluff, Nebraska (Plaintiffs) appeal from the district court‘s award of costs to the Burlington Northern and Santa Fe Railroad (BNSF) and Montana Rail Link (MRL). We vacate and remand.
I.
Plaintiffs filed suits against BNSF and MRL in Nebraska state court following a November 4, 2000, train derailment.
II.
We review the district court‘s award of costs for abuse of discretion. Bathke v. Casey‘s Gen. Stores, Inc., 64 F.3d 340, 347 (8th Cir. 1995) (citation omitted). A prevailing party is presumptively entitled to recover all of its costs.
A.
Plaintiffs assert that neither BNSF nor MRL is a prevailing party. The district court‘s summary judgment ruling left open certain claims raised in one of the consolidated cases (the Stachon case). Those claims, which allege constitutional violations on the part of BNSF, are the only claims still pending in this consolidated litigation. Because the remaining claims do not name MRL as a defendant and because all other claims brought against MRL have been resolved in its favor, MRL is a prevailing party. Similarly, BNSF is a prevailing party with respect to all consolidated plaintiffs except the Stachon plaintiffs.
We are unable to determine, however, whether BNSF is a prevailing party against the Stachon plaintiffs. Because the general rule is that parties against whom costs are ordered are jointly and severally liable for those costs, Concord Boat, 309 F.3d at 497 (citation omitted), if BNSF is ultimately deemed a prevailing party against the Stachon plaintiffs, then those plaintiffs, along with the other consolidated plaintiffs, will be jointly and severally liable for BNSF‘s costs. If, on the other hand, BNSF is not designated a prevailing party against the Stachon plaintiffs, then they will have no liability for the award of costs to BNSF.
The district court clerk excepted the Stachon plaintiffs from its orders awarding costs to BNSF and to MRL. Because MRL is a prevailing party against each of the consolidated plaintiffs, the clerk erred in excluding the Stachon plaintiffs from the award of costs to MRL. Similarly, because it is possible that the Stachon plaintiffs will ultimately be liable for the award of costs to BNSF when their pending claims have been resolved, it was also error for the clerk to exclude them from the award of costs to BNSF. But it would have been equally erroneous for the clerk to have included the Stachon plaintiffs in that cost award. The most practical resolution of this dilemma is for the district court to hold in abeyance its award of costs to BNSF until the Stachon claims have been resolved. At that point, the district court will be able to determine whether the Stachon plaintiffs should be named in the order awarding costs to BNSF.
B.
Plaintiffs argue that, regardless of whether BNSF and MRL are prevailing
III.
Plaintiffs allege that the district court should have compelled another attorney who had previously been involved in this litigation to hand over certain client files. As Plaintiffs’ counsel conceded at oral argument, the need for client files is moot in light of our decision in case No. 04-2053. Plaintiffs remaining arguments are either raised for the first time on appeal or otherwise without merit.
IV.
The orders awarding costs to BNSF and MRL are vacated and the case is remanded with direction to add the Stachon plaintiffs to the order awarding costs to MRL1 and to hold in abeyance the order awarding costs to BNSF until the Stachon plaintiffs’ remaining claims have been resolved.