United States District Court, N.D. Illinois, Eastern Division
September 27, 2005.
DEBORAH PETERSEN, Plaintiff,
OFFICER BYRON GIBSON, OFFICER JEFF FRITZ, VICTORIA KNAUF, JOANN HUBRICH, JOHN BILLIANSI, and MARIO TRICOCI HAIR COMPANY-BLOOMINGDALE, d/b/a MARIO TRICOCI SALON, an Illinois corporation, Defendants.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
On remand, I am to consider whether the term "prevailing" has
"a different meaning in the context of costs as opposed to
attorneys' fees" and, if so, whether Petersen is a prevailing
party for the purpose of assessing costs. Petersen v. Gibson,
372 F.3d 862, 867-68 (7th Cir. 2004). In her motion for costs,
Petersen also seeks a more extraordinary remedy: she asks that
pursuant to Fed.R.Civ.P. 60(b)(6), I enter a final judgment
incorporating the jury verdict, the parties' subsequent
settlement, and clarify my "implicit finding that the settlement
reflects the damages actually sustained by plaintiff and was not
a nuisance settlement to avoid the expense of a second trial." On
appeal, the Seventh Circuit observed that while "a settlement
short of a consent decree may qualify" a party as prevailing,
Petersen's settlement lacked any judicial imprimatur that could
support her status as a prevailing party. Petersen,
372 F.3d at 866-67. The court stated that "the settlement in this case
clearly falls on the short side. There is in fact no order that
we can find in the record, and none provided by the parties,
concerning the settlement at all, and thus no judicial imprimatur whatsoever under Buckhannon." Id. at 867.
The court found that the "only judgment in this case is a
determination that Petersen's rights were violated," which was
insufficient to support prevailing party status. Id. at 866.
Petersen now seeks relief from the judgment of record, so as to
establish her status as a prevailing party eligible for
Fed.R.Civ.P. 60(b)(6) is a catch-all provision that
permits a party to seek relief from a final judgment. It is a
provision grounded in principles of equity, and to qualify for
its relief a party must show "extraordinary circumstances that
create a substantial danger that the underlying judgment was
unjust." Margoles v. Johns, 798 F.2d 1069, 1073 (7th Cir. 1986)
(citations omitted). Petersen claims that the judgment in this
case one entered after trial and reflecting Gibson's liability,
but one that did not reflect my conclusion that the subsequent
settlement agreement reflected Petersen's actual damages is now
manifestly unjust in light of the Seventh Circuit's unexpected
application of the Buckhannon decision to the settlement.
Petersen observes that neither party addressed Buckhannon's
applicability to the case in their briefing to the Seventh
Circuit, and states that, "prior to the oral argument . . .
Petersen had no hint that the Seventh Circuit would extend
Buckhannon to hold that in a case in which plaintiff won a
verdict on liability and [established that] defendant's wrongful
conduct caused her `substantial actual injury,' the lack of a
final judgment incorporating the subsequent settlement was fatal
to her fee petition." (Pl. Mem. at 11).
In fact, neither Buckhannon nor T.D. v. La Grange Sch. Dist.
No. 102, 349 F.3d 469 (7th Cir. 2003),*fn1 involved
settlements reached subsequent to judicial findings of liability.
Buckhannon established the principle that a party seeking
attorneys fees must establish a "judicially sanctioned change in the legal relationship of the parties." Buckhannon Bd.
& Care Home, Inc. v. W. Va. Dep't of Health & Human Res.,
532 U.S. 598, 605 (2001). Such change is found, for example, in an
enforceable judgment on the merits or through a court-ordered
consent decree. Id. at 603-04. A private settlement followed by
dismissal of the suit does not confer prevailing party status.
T.D., 349 F.3d at 478-79. Of course in T.D., the private
settlement did not follow a verdict of liability and an order
directing a trial on damages; there was no judgment whatsoever
prior to the parties' private agreement.
The importance of clear final orders in post-Buckhannon cases
involving settlements was recognized in Sonii v. General
Electric Co., 359 F.3d 448, 449 (7th Cir. 2004).*fn2 In
Sonii, the parties settled the case and sought attorneys' fees.
The district court denied the request for fees, and the parties
appealed before there was a final order in the district court.
The Seventh Circuit found lack of jurisdiction to consider the
appeal. The Court expressed concern that the details of the
absent final order "could affect the question whether plaintiffs
are prevailing parties." Sonii at 449. Rather than rule, the
Court remanded the case to avoid guessing as to the intended
nature of the district court's disposition. The Court observed
that in dismissing the case, the district judge could implement
the parties' settlement agreement in at least three ways: "(1) a
one-line order of dismissal; (2) a dismissal reserving
jurisdiction to enforce the underlying contract; (3) a dismissal
incorporating the settlement contract as a judgment of the
court." Id. Judge Easterbrook indicated that the first option
would clearly establish that the plaintiff was not a prevailing
party, while the third option would clearly render the plaintiff
a prevailing party, and that the second option would be
"ambiguous." Id. No such remand was entered in this case; rather, the Seventh Circuit found the absence of a final order
subsequent to the settlement a clear indication that the
settlement bore no judicial imprimatur of a change in legal
status between the parties.
I believe I can state with certainty that in this case, neither
I nor the parties anticipated the basis for the outcome on
appeal. Gibson argues that whatever our surprise, Petersen's Rule
60(b)(6) is improper; but, should I find that she is entitled to
seek such relief, her petition must be denied on the merits
because the parties never intended that I lend a "judicial
imprimatur" to the settlement agreement though it is clear to
me, at least, that I would have done so. Gibson's argument that
the motion is improper is threefold: first, that Petersen is
attempting to re-litigate the merits of this issue in flat
defiance of the law of the case doctrine; second, that Petersen
is attempting to undo her "deliberate choice" not to seek a final
judgment incorporating the settlement; and third, that Plaintiff
is impermissibly relying on a mistake of law to pursue relief.
Gibson objects to Petersen's motion on the ground that she is
raising arguments now that she could have raised on appeal, a
fact that evidences a lack of extraordinary circumstances. Gibson
relies on Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th
Cir. 2000) for this proposition. However, the Bell Court held
that a party may not seek to set aside a judgment under Rule
60(b) if that party is attempting to do so on a ground that could
have been used to obtain a reversal on appeal. In this case,
Gibson appealed my award of attorneys' fees, though not on the
ground that Petersen was not a prevailing party under
Buckhannon; Petersen's cross-appeal simply protested my
decision to reduce the attorneys' hourly rates. Bell,
therefore, is inapposite to the unique circumstances of this
case, in which the reviewing court applied, sua sponte, the
principles of Buckhannon, a case Petersen had no reason to
address on appeal as I had granted the vast majority of the
relief she sought. Gibson's reliance on Ben-Shalom v. Secretary
of Army, 826 F.2d 722, 724 (7th Cir. 1987), which prohibits efforts to
re-litigate a case under Rule 60(b)(6), is also inapposite. See
Ben-Shalom, 826 F.2d at 724 (denial of Rule 60(b) motion proper
when motion was effort to re-litigate case after party
intentionally abandoned appellate process).
Gibson also bases his claim of "re-litigation" on the fact that
Petersen's present arguments mirror those presented in her
Petition for Panel Rehearing and Suggestion for Rehearing En
Banc. That Petition was the first time Petersen could reasonably
be expected to attempt (and did attempt) to raise the issue of
her status as a prevailing party under Buckhannon. Her Petition
was summarily denied. Gibson cannot rely on that denial as
defining the scope of the law of the case so as to deny Plaintiff
Rule 60(b) relief.
[B]ecause a summary denial of a petition for
rehearing does not explain the bases for the denial,
it is insufficient to confer any implication or
inference regarding a court's opinion relative to the
merits of a case . . . summary denial of [a party's]
petition for rehearing did not create law of the case
. . .
Moore v. Anderson, 222 F.3d 280
, 284 (7th Cir. 2000) (internal
quotation and citation omitted).
However, Moore also instructs that "when a court of appeals
has reversed a final judgment and remanded the case, the district
court is required to comply with the express or implied rulings
of the appellate court," although "[o]n remand, the district
court retains the authority to dispose of other issues not
addressed." Id. at 283 (quoting Waid v. Merrill Area Pub.
Sch., 130 F.3d 1268, 1272 (7th Cir. 1997) and citing Sprague v.
Ticonic Nat'l Bank, 307 U.S. 161 (1939)). The law of the case
doctrine is the best ground for protesting the invocation of Rule
60(b) on remand. The Seventh Circuit reversed my award of
attorneys' fees and remanded solely for consideration of costs
because the Court could find no order in the record concerning
the settlement. Absent such an order, the settlement was simply a
private agreement among the parties that lacked any judicial imprimatur sufficient to confer
"prevailing party" status. Petersen, at 867.
Petersen contends that her Rule 60(b) request for a final
judgment that would incorporate the jury verdict on liability,
the settlement agreement, a statement of my intent and a new
award of costs, raises "issue[s] not addressed" by the Court of
Appeals. See Moore, 222 F.3d at 283. Yet the consequence of
that request opens the door to the issue of Plaintiff's status as
a prevailing party an issue clearly addressed on appeal.
Plaintiff's statement that she does not seek to re-litigate the
merits of any ruling of the Seventh Circuit "on the record it had
before it" acknowledges that her request could alter the record
so as to subsequently challenge the basis of the appellate
court's decision. (Pl. Rep. at 8.)*fn3 Petersen's pursuit of
an order that "affirms what actually happened in this case" (Pl. Rep. at 9) would establish
grounds to subsequently reconsider and potentially alter the law
of the case as articulated by the appellate court.
No matter how sympathetic I am to the situation in which
Petersen (or, more appropriately, Petersen's counsel) now finds
herself, the doctrine of the law of the case bars arguments for
reconsideration "based not on intervening authority, new (and
heretofore undiscoverable) evidence, or other changed
circumstances that justify waiver of the doctrine . . . but on
considerations of fact or law that were available when the
previous appeal was argued." Vidimos, Inc. v. Wysong Laser Co.,
179 F.3d 1063, 1065 (7th Cir. 1999). Whatever facts or legal
arguments the parties might have raised on appeal, there is no
question that the Seventh Circuit knew of and considered the
following facts: Petersen secured a verdict of liability and
nominal damages; I vacated the nominal damages award and ordered
a new trial on damages; the parties subsequently settled for
$10,000; and I awarded attorneys' fees to Petersen. Petersen,
372 F.3d at 864. The Seventh Circuit also had before it the
opinion in which I explained why I considered Petersen a
prevailing party. While the Court perhaps took a more prudent
course by remanding, rather than ruling, in Sonii, the
settlement in that case pre-dated Buckhannon, and Judge
Easterbrook recognized that the district court might wish to
enter a form of judgment that vindicated pre-Buckhannon
expectations. 359 F.3d at 450.
In this case, Petersen seeks to vindicate not pre-Buckhannon
expectations, but pre-Petersen expectations. Petersen
established a new rule: parties seeking damages after securing
judgments of liability, but who settle before damages are
awarded, are not prevailing parties absent a court order that
imposes a judicial imprimatur on the terms of the
settlement.*fn4 372 F.3d at 866-67. The procedure adopted by the parties and by this court
did not satisfy that standard. Id. ("Because Petersen received
no relief from the judgment of the court, and because the
settlement was not a `judicially sanctioned' change in the legal
relationship of the parties, Petersen was not a prevailing party
under § 1988"). In light of that ruling, rather than a decision
to remand on this issue, and based on my review of the law, I
find Petersen's request to amend the earlier judgment so as to
render her a prevailing party under Buckhannon is not the
extraordinary circumstance that Rule 60(b)(6) contemplates. I
turn, therefore, to the issue of costs.
Petersen seeks costs as a prevailing party under
42 U.S.C. § 1988, or alternatively, under Fed.R.Civ.P. 54(d). (Pl. Mem.
at 8.) She believes that the language of the Seventh Circuit's
decision offers the possibility that a party who is not
sufficiently "prevailing" to be entitled to fees under § 1988
might otherwise be sufficiently "prevailing" to be entitled to
costs under § 1988. See Petersen 372 F.3d at 867-68. Gibson
contends that because the Seventh Circuit found that Petersen was
not a prevailing party under § 1988 for purposes of collecting
attorneys' fees, she cannot rely on § 1988 to pursue costs on remand and may seek
costs only under Rule 54(d). Gibson further contends that
Petersen did not prevail sufficiently to be entitled to Rule 54
While the language of the penultimate paragraph of the Court's
decision certainly opens the door to Petersen's argument, earlier
language in the opinion clearly establishes that Petersen was not
a prevailing party under § 1988. Id. at 867 ("Petersen was not
a prevailing party under § 1988, and is not entitled to
attorneys' fees"). That Petersen is not entitled to attorneys'
fees is but one consequence of the decision that she was not a
prevailing party under the statute. The Court's language simply
does not support the inference that Petersen was not a prevailing
party exclusively for the purpose of awarding attorneys' fees.
Moreover, the cases on which the Seventh Circuit relied to
imply that Petersen might be entitled to fees do not suggest
creating a dichotomy within § 1988, i.e., a "prevailing"
standard for fees that differs from the standard for costs; but
rather, suggest that a party's inability to secure attorneys'
fees does not preclude an award of costs on other grounds. See,
e.g., Maher v. Gagne, 448 U.S. 122, 130-31 & n. 14 (1980)
(observing that a party may be awarded costs despite 11th
Amendment immunity that would otherwise bar an award of
attorneys' fees); and Mother & Father v. Cassidy, 338 F.3d 704,
710 (7th Cir. 2003) (noting that decisions regarding Rule 54
costs are not analogous to decisions regarding the availability
of attorneys' fees as "[a]ttorneys' fees stand on a different
The analysis governing the right to fees differs from the
analysis governing the right to costs. See Buckhannon,
532 U.S. at 606 n. 8 (rejecting the dissenter's reliance on Mansfield, C.
& L.M. Ry. Co. v. Swan, 111 U.S. 379 (1884) as support for the
"catalyst" theory because the case involved costs rather than
attorneys' fees). Moreover, there is a strong, historical
presumption in favor of costs a presumption that does not
extend to attorneys' fees. Mother & Father, 338 F.3d at 710. Because a party may prevail for one
purpose (costs) though not for another (fees), I will consider
Petersen's entitlement to fees under Rule 54(d).
Rule 54(d)(1) presumes the award of costs to parties who have
prevailed on a substantial part of the litigation. Testa v.
Village of Mundelein, 89 F.3d 443, 447 (7th Cir. 1996) (citation
omitted). In this case, as I have detailed before, Petersen
prevailed before a jury which returned a favorable verdict
assessing liability against Officer Gibson on Petersen's two
constitutional claims, though not the third claim of conspiracy.
Although the jury awarded only nominal damages, I awarded
Petersen a new trial on the issue of damages. The parties then
settled for $10,000 an amount that excluded fees and costs. On
the basis of these facts, I find that Petersen prevailed
sufficiently to be entitled to costs, and now turn to Gibson's
individual objections to various costs.
At the outset, I note that Plaintiff has conceded that she is
not entitled to expert witness fees and has therefore reduced her
request to a total of $16,495.03. Costs are recoverable if they
are authorized by statute and are both reasonable and necessary
to the litigation. Cefalu v. Village of Elk Grove,
211 F.3d 416, 427 (7th Cir. 2000). 28 U.S.C. § 1920 defines the costs
permissible under Rule 54(d). Cengr v. Fusibond Piping Sys.,
135 F.3d 445, 454 (7th Cir. 1998).
Gibson first challenges Petersen's litigation expenses
($3,679.21) on the basis that they are unavailable under § 1920.
Gibson correctly notes that Petersen's travel and related
expenses may not be taxed under § 1920. Calderon v. Witvoet,
112 F.3d 275, 276 (7th Cir. 1997). Petersen's request for
Westlaw-related expenses must be denied for the same reason.
Montgomery v. Aetna Plywood, Inc., 231 F.3d 399, 409 (7th Cir.
2000) ("[c]omputer research charges are considered a form of
attorneys' fees"). So, too, Petersen's costs for messenger
services, M.S. Distrib. Co. v. Web Records, Inc., 2003 WL
21788988, *1 (N.D. Ill. July 31 2003); phone and fax services, Heiar v. Crawford County,
746 F.2d 1190, 1203, (7th Cir. 1984); meals and lodging, Robinson v. City
of Harvey, 2004 WL 2033714, *8 (N.D. Ill. Aug. 13, 2004);
supplies, id.; and apparent storage fees.
Gibson next contends that Petersen cannot recover the costs for
duplicating, reproduction and graphic design ($1,197.00) because
the bills are insufficiently clear to allow me to determine that
the costs were necessary for litigation. I have no such qualms
with Petersen's documentation of these costs, and consider them
reasonable in light of the fiercely contested nature of the
dispute and my memory of the litigation. Copying costs are
permissible under § 1920(4). See Cengr, 135 F.3d at 454. I am
allowing these costs, with the exception of $10.48, which appears
to be a duplicate charge. Gibson also objects to Petersen's
in-house duplication expenses ($4,431.00). Once again, based on
my recollection of the case, I find that Petersen's copying
expenses were appropriate and reflect the cost of copies
necessarily obtained for use in the case. These costs will be
taxed against Gibson.
Gibson also challenges part of Petersen's transcript-associated
costs ($5,093.42) on the basis that § 1920 limits transcript
costs to those recoverable at the established rate in effect at
the time of the deposition and because condensed transcripts,
indices and ASCII diskette copies are not permitted under § 1920.
See id. at 455 (permitting costs for transcripts and
photocopies, and noting that current rates were $3.00 per
original page and $0.75 per copy page); and Surratt v. Chicago
Transit Auth., 2005 WL 946873, *1-2 (N.D. Ill. Apr. 18, 2005)
("[c]ondensed transcripts, indexes and ASCII diskette copies of
the transcripts are not taxable because they are considered to be
prepared for the benefit of [Plaintiff] and are not necessary to
the litigation"). Petersen does not challenge these assertions,
and I accept Gibson's proposed reduction of the costs to $3,696.52, but add $633.00 to reflect the cost of the
transcript of Plaintiff's deposition, which Gibson acknowledges
was 211 pages long.
Finally, Gibson objects to Petersen's attempt to recover the
cost of private process servers, arguing that the prevailing
party may recover only the cost equal to the cost of using the
Marshal's Service to serve the subpoenas. See Collins v.
Gorman, 96 F.3d 1057, 1060 (7th Cir. 1996). That rate permits a
charge of $40 per hour for the first two hours and $20 for each
additional hour, plus $0.31 for each mile traveled. Plaintiff did
not document the hours spent serving each of the seven subpoenas;
Gibson therefore requests a reduction in expenses from $500 to
$280, representing the minimum cost per subpoena. I grant this
For these reasons, I grant in part Petersen's request for
costs, awarding $11,821.41 pursuant to 28 U.S.C. § 1920.
Petersen's Motion for Entry of Amended Judgment pursuant to Rule
60(b)(6) is denied.
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