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April 5, 2002


The opinion of the court was delivered by: John W. Darrah, U.S.D.J.


Plaintiff, Elmer Sanglap ("Sanglap"), sued Defendant, LaSalle Bank ("LaSalle"), for alleged intentional infliction of emotional distress and violation of the American with Disabilities Act ("ADA"). Judgment was entered for Defendant on both claims. Defendant has filed a motion for attorney fees as the prevailing party pursuant to the ADA and a bill of costs.

The district court has discretion to award fees to a "prevailing party" under the ADA. 42 U.S.C. § 12205. An award of fees to a prevailing defendant is appropriate only when the law suit was brought in bad faith or when it is frivolous, unreasonable, or without foundation. Christiansburg Garment Co. v. EEOC, 434, U.S. 412, 421-22 (1978) (Christiansburg); Adkins v. Briggs & Stratton Corp., 159 F.3d 306, 307 (7th Cir. 1998) (Adkins). When applying these criteria, "it is important that a district court resist the . . . temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation." Christiansburg, 434 U.S. at 417. The fact that a plaintiff advocates an inference that the court declines to adopt does not lead to the conclusion that the plaintiff acted without foundation. EEOC v. Elgin Teachers Ass'n, 27 F.3d 292, 295 (7th Cir. 1994).

Here, LaSalle contends that Sanglap's ADA claim was without foundation because he admitted that he did not inform LaSalle that he had epilepsy and he failed to present evidence that LaSalle had knowledge of his disability.

A defendant cannot take an action because of a disability in violation of the ADA unless the defendant has knowledge of such disability. See Adkins, 159 F.3d at 307; Hedberg v. Indiana Bell Telephone Co., 47 F.3d 928, 932 (7th Cir. 1995).

In the instant case, Sanglap did not inform LaSalle that he had epilepsy. However, unlike Adkins, where the plaintiff admitted that his employer knew nothing about his disability, Sanglap did not admit that LaSalle knew nothing about his disability. Rather, Sanglap contended, and attempted to prove through evidence, that Defendant knew of Sanglap's disability. This evidence included several "incidents" Sanglap experienced in the bank in which Sanglap was incoherent, unresponsive, and asked for "help". In one "incident", Sanglap was lying on the floor asking for help in an apparent need of medical attention, as evidenced by LaSalle calling an ambulance to the bank. Sanglap elicited testimony in support of his contention and vigorously argued this contention to the Court in his attempt to prove his ADA claim. The Court ultimately found that there was no legally sufficient evidentiary basis for a reasonable jury to find for Plaintiff. However, based on the above, it cannot be said that Plaintiff brought his claim in bad faith, frivolously, unreasonably, or without foundation. Accordingly, LaSalle's motion for fees pursuant to the ADA is denied.

LaSalle also seeks a total of $7,204.65 in costs pursuant to Federal Rule of Civil procedure 54(d).

"Costs . . . shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed. R. Civ. P. 54(d). Recoverable costs, as set forth in 28 U.S.C. § 1920, include: (1) fees of the clerk, (2) fees for transcripts, (3) fees for printing and witnesses, (4) fees for copies of papers necessarily obtained for use in the case, (5) docket fees, and (6) compensation of court-appointed experts and interpreters.

There is a strong presumption favoring the award of costs to the prevailing party. Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 945 (7th Cir. 1997) (Weeks). "The presumption is difficult to overcome, and the district court's discretion is narrowly confined — the court must award costs unless it states good reasons for denying them." Weeks, 126 F.3d at 945. A losing party may overcome this presumption by a showing of indigency. McGill v. Faulkner, 18 F.3d 456, 457 (7th Cir. 1994). However, actual indigency, not merely limited financial resources, must be demonstrated. Craven v. City of Chicago, 2001 WL 62573 (N.D.Ill. Jan. 25, 2001); Falcon v. City of Chicago, 2000 WL 1231403 (N.D.Ill. Aug. 28, 2000).

Sanglap has provided an affidavit in which he avers that he is unable to pay fees and costs. Sanglap's affidavit indicates that he is approximately $17,500 in debt. Arguably, Sanglap's affidavit demonstrates that he may be unable to presently pay for costs. However, the affidavit fails to demonstrate actual indigency and his inability to pay costs now or in the future. Plaintiff lives with his cousin to whom he pays an unspecified amount of rent for his room. He has a net income of approximately $1,200 per month, a small amount of savings, and a retirement plan through his employer. See Craven, 2001 WL 62573 at *1; Falcon, 2000 WL 1231403 at *1.

Sanglap also challenges Defendant's costs as improper and/or excessive.

Defendant seeks $2,1490 in subpoena service fees of several witnesses.

LaSalle's subpoena invoice #11091 indicates that service for two people was a "rush" but does not indicate why rush service was required. LaSalle also has failed to provide the address of where service had taken place, the mileage for service, how long service took, and the amount charged per hour for service. Accordingly, the Court will award the minimum charged by the Marshal's service, $40 per ...

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