In the

United States Court of Appeals

For the Seventh Circuit

No. 07-4088

RONALD D. SMART, doing business

as PASCHALL ELECTRIC,

Plaintiff-Appellant,

v.

LOCAL 702 INTERNATIONAL BROTHERHOOD

OF ELECTRICAL WORKERS, CHRISTOPHER

N. GRANT AND SCHUCHAT, COOK & WERNER,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 07 C 94—David R. Herndon, Chief Judge.

MOTION TO COMPEL PAYMENTS OF COSTS

JULY 22, 2009

Before RIPPLE, KANNE and TINDER, Circuit Judges.

PER CURIAM. This matter is before us on the plaintiff’s motion to compel the payments of costs. For the

reasons set forth in this opinion, we grant the motion. The
2 No. 07-4088

defendants are ordered to pay the costs previously

ordered by this court forthwith.

A.

Ronald Smart is the proprietor of a non-union company

that contracted to perform certain electrical work in the

construction of a sports complex. Mr. Smart alleged that,

subsequently, the International Brotherhood of Electrical

Workers, Local 702, coerced the owner of the sports

complex to terminate the contract by threatening to

withhold services if the owner did not employ union

workers instead of Mr. Smart. Mr. Smart alleged that he

was fired and that the owner hired a company affiliated

with the union in his stead. He brought an action in

the district court for alleged violations of the Illinois

Antitrust Act, 740 ILCS 10/3. In the same action, he also

brought a claim against the union, its law firm and one

of the firm’s attorneys for unwarranted prosecution.

Finally, he brought another claim against the law firm

and the attorney for legal malpractice. The defendants

moved to dismiss the complaint as preempted by the

National Labor Relations Act, as barred by judicial

estoppel, and as failing to state a claim upon which relief

can be granted. The district court granted the motion,

holding that the antitrust claim was preempted, and that,

with regard to the two state-law claims, Mr. Smart had

pleaded himself out of court. The district court then

awarded the defendants $762.62 in costs incurred in

the district court.

On appeal, we held that Mr. Smart’s state antitrust

claim was completely preempted, but, because the facts
No. 07-4088 3

alleged in his complaint included an allegation of secondary boycott activity for which relief is available under

29 U.S.C. § 187, that claim was remanded for evaluation

under the appropriate federal standard. We affirmed

the dismissal of the state-law claims. Our opinion provided that Mr. Smart may recover his costs in this court,

and, in due course, we permitted Mr. Smart’s bill of costs,

which he initially had filed, erroneously, in the district

court, to be filed instanter.

Mr. Smart was awarded $741.43 in costs incurred in

this appeal. When he attempted to collect those costs,

however, counsel for the defendants informed him

that, because the district court had awarded the

defendants $762.62 in costs incurred there, he owed the

difference of $21.19. Mr. Smart moved to compel the

payment of costs, and we called for a response from

the defendants, which has now been filed. 

B.

Although they did not file a petition for rehearing to

make this argument, the defendants now contend that

Mr. Smart “is not a successful appellant.” Resp. at 5 ¶ 5. In

their view, because the judgment of the district court

was affirmed in all respects as to the law firm and the

attorney, those two defendants were prevailing parties.

The defendants also contend that the union is a prevailing

party because Mr. Smart also made an unsuccessful claim

against it for unwarranted prosecution. It is too late to

make these arguments now. In any event, we believe

that our original award of costs was a permissible exercise of our discretion.
4 No. 07-4088

The defendants further submit that they have not

refused to pay the plaintiff’s costs in accordance with the

bill of costs issued by this court. They claim that they

simply asked Mr. Smart to first pay the costs to the clerk

of the district court taxed in the defendants’ favor in the

case below. The matter of costs in this court is a freestanding obligation. It must be paid now. The matter of

costs in the district court is not a matter properly before

this court now. We point out, however, that Federal Rule

of Civil Procedure 54(d) provides that costs may be

awarded to a “prevailing” party. See Fed. R. Civ. P. 54(d).

A party prevails for purposes of Rule 54(d) when a final

judgment awards it substantial relief. See Slane v. Mariah

Boats, Inc., 164 F.3d 1065, 1068 (7th Cir. 1999) (applying

“substantial relief” standard); Zessar v. Keith, 536 F.3d

788, 796 (7th Cir. 2008) (discussing, in an analogous context of an award of fees under § 1988, the need for a

judgment to be “final” in order to be considered a “prevailing party”). A final judgment is one that resolves

all claims against all parties. Dale v. Lappin, 376 F.3d 652,

654 (7th Cir. 2004).

We remanded one of the claims against the defendant

union to the district court for further proceedings. In light

of this action, the district court now must revisit the

matter of costs and enter a new determination. See Furman

v. Cirrito, 782 F.2d 353, 355 (2d Cir. 1986) (“When a

district court judgment is reversed or substantially modified on appeal, any costs awarded to the previously

prevailing party are automatically vacated.”); In re Smith,

876 F.2d 524, 527 (6th Cir. 1989) (stating that “when

a judgment is reversed on appeal, any taxation of costs is
No. 07-4088 5

also automatically vacated” and citing Furman); cf. State of

Idaho Potato Comm’n v. G & T Terminal Packaging, Inc.,

425 F.3d 708, 723 (9th Cir. 2005) (observing that “we

cannot tell the extent to which our reversal of the [one]

claim might affect the district court’s prevailing party

calculus” and therefore vacating an award of costs). The

district court has the authority to enter a partial final

judgment if the court determines that there is no just

reason for delay, see Fed. R. Civ. P. 54(b), or it may

defer action until it adjudicates the remaining claim of

Mr. Smart against the union. The defendants may yet

prevail on all of their claims—and may be awarded

costs, including those in the bill of costs submitted in

December 2007—once a new final judgment is entered.

For the present, however, there is no operative bill of

costs in the district court which could be set off against

those awarded to Mr. Smart in this appeal.

Accordingly, the defendants shall pay forthwith the

costs assessed on appeal to Mr. Smart.

IT IS SO ORDERED.

7-22-09