UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 97-60611
Summary Calendar
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FAYE THOMLEY, Individually and as Administratrix of the Estate of
CHARLEY W. THOMLEY, deceased; DANA THOMLEY and RHONDA THOMLEY
Patterson,
Plaintiffs - Appellants,
VERSUS
MACK TRUCK, INC.,
Defendant - Appellee.
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Appeal from the United States District Court
For the Southern District of Mississippi
(3:94-CV-716 BrN)
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October 26, 1998
Before DAVIS, DUHÉ and PARKER, Circuit Judges.
PER CURIAM:*
This appeal is before the Court on the sole issue of whether
the district court abused its discretion in awarding costs to the
prevailing party. We modify and affirm.
The defendant Mack Truck, Inc. moved for judgment as a matter
of law after plaintiffs presented their case-in-chief. The
district court granted the motion and taxed costs of $11,112.79
against the plaintiffs pursuant to Federal Rule of Civil Procedure
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
54(d).2 Plaintiffs challenge the award.
The district judge has discretion in awarding costs, and “we
will not overturn his decision unless a clear abuse thereof is
shown.” Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729 F.2d
1530, 1551 (5th Cir. 1984) (quoting Kinnear-Weed Corp. v. Humble
Oil & Refining, 441 F.2d 631, 637 (5th Cir.), cert. denied, 404
U.S. 941, 92 S.Ct. 285, 30 L.Ed.2d 255 (1971). After carefully
reviewing the record in this case, we find no abuse of discretion,
with one minor modification. The defendant conceded that the trial
court “taxe[d] costs [$96.68] associated with the deposition of
Frank Bridges to Thomley on 2 occasions.” Because this cost was
taxed twice, the award of $11,112.79 should be reduced by $96.68.
Except for this modification, the order of the district court is
affirmed.
AFFIRMED AND MODIFIED.
2
Rule 54(d) provides: “Except when express provision therefor
is made either in a statute of the United States or in these rules,
costs other than attorneys’ fees shall be allowed as of course to
the prevailing party unless the court otherwise directs....”
2