SHIRLEY ROTHENBERG, PLAINTIFF-APPELLEE,
v.
SECURITY MANAGEMENT CO., INC., DEFENDANT, INVESCO INTERNATIONAL, INC., DEFENDANT-APPELLANT; SHIRLEY ROTHENBERG, PLAINTIFF-APPELLEE, V. SECURITY MANAGEMENT CO., INC., INVESCO INTERNATIONAL, INC., BRUCE R. DAVIS, SANDRA DAVIS, DANIEL BURKE, LOUIS BRENNER, GEORGE S. STERN, SIDNEY I. ROSE, RALPH BECKER, RONALD I. LEVIN AND SAUL BECKER, DEFENDANTS-APPELLANTS
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The district court retained jurisdiction to consider a motion for attorney's fees filed after the notice of appeal.
A party filed a motion for attorney's fees after filing a notice of appeal but before the expiration of the time for filing a bill of costs. The distr…
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CLARK, Circuit Judge:
The only issue presented in the instant appeal is whether the court below had jurisdiction to entertain a motion for an award of attorney’s fees which was filed after a notice of appeal had been filed, but prior to expiration of the local time period for filing a bill of costs. The district court ruled that it did not have jurisdiction; we reverse its judgment.
It is well settled in this circuit that costs may be taxed after a notice of appeal has been filed. Baum v. United States, 432 F. 2d 85 (5th Cir. 1970); United States v. Kolesar, 313 F. 2d 835 (5th Cir. 1963). We have the guidance, which the district court did not, of the recent Supreme Court case of White v. New Hampshire Department of Employment Security, - U.S. -, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). There, the Supreme Court held that a request for attorney’s fees under 42 U.S.C. § 1988 is not a motion to amend the judgment and therefore Federal Rule of Civil Procedure 59(e) is not applicable when such fees are requested. Knighton v. Watkins, 616 F. 2d 795 (5th Cir. 1980), held that a request for attorney’s fees under 42 U.S.C. § 1988 is treated as a motion for costs under Federal Rule of Civil Procedure 54(d).1
Following from the above, we hold that the request for attorney’s fees in the instant case was a motion for costs which the district court had jurisdiction over despite the filing of the notice of appeal. The statute under which attorney’s fees are sought, Ga.Code § 22-615(e), is similar in language to 42 U.S.C. § 1988. Thus, we find no basis to distinguish the instant situation from those cases arising under 42 U.S.C. § 1988. Therefore, we reverse the district court and remand for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
. The Eleventh Circuit, in the en banc decision of Bonner v. City of Prichard, 661 F. 2d 1206 (11th Cir. 1981), adopted as precedent the decisions of the former Fifth Circuit decided prior to October 1, 1981.
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Sec. & Exch. Comm'n v. Carriba AIR, Inc., 681 F.2d 1318 (11th Cir. 1982)…nth Circuit is bound by all Fifth Circuit cases handed down prior to the close of business on September 30, 1981 unless and until the Eleventh Circuit en banc speaks on the issue presented. See, e.g., Rothenberg v. Security Management Company, Inc., 677 F. 2d 64, 65 (11th Cir., May 24, 1982); Cotton v. Federal Land Bank of Columbia, 676 F. 2d 1368, 1369 (11th Cir. 1982); United States v. Bizzard, 674 F. 2d 1382, 1385 (11th Cir. 1982).…
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Gordon v. Heimann, 715 F.2d 531 (11th Cir. 1983)…fees requests should never be governed by that time limitation.7 This is not the first time this court has extended the reasoning of White v. New Hampshire beyond the section 1988 civil rights cases. In Rothenberg v. Security Management Co., Inc., 677 F. 2d 64 (11th Cir.1982), this court held that, under the White v. New Hampshire rationale, Rule 59(e) did not control a request for attorneys’ fees brought pursuant to Georgia law governing shareholder derivative suits. Other circuits have also read White v…
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Thomas v. Cap. Sec. Servs., Inc., 812 F.2d 984 (5th Cir. 1987)…721 F. 2d 91, 95 n. 5 (3d Cir.1983) (en banc); Masalosalo v. Stonewall Insurance Co., 718 F. 2d 955, 956 (9th Cir.1983); Jones v. Illinois Dept, of Rehabilitation Services, 689 F. 2d 724, 731-32 (7th Cir.1982); Rothenberg v. Security Management Co., 677 F. 2d 64, 66 (11th Cir.1982); Obin v. District No. 9, 651 F. 2d 574, 583-84 (8th Cir.1981); Duane Smelser Roofing Co. v. Armm Consultants, 609 F.Supp. 823, 824 (E.D.Mich. 1985); cf. Jackson Marine Corp. v. Harvey Barge Repair, Inc., 794 F. 2d 989, 991 (5th C…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bonner v. City OF Prichard, 661 F.2d 1206 (11th Cir. 1981)
- White v. N.H. Dep't of Emp. Sec., 455 U.S. 445 (U.S. 1982)
- Knighton v. Watkins, 616 F.2d 795 (5th Cir. 1980)
- United States v. Marrian Kolesar and Andrew Kolesar, 313 F.2d 835 (5th Cir. 1963)
- Baum v. United States, 432 F.2d 85 (5th Cir. 1970)