United States District Court, S.D. Illinois
October 17, 2005.
TANA R. CUMMINS, Plaintiff,
STATE OF ILLINOIS, Defendant.
The opinion of the court was delivered by: J. GILBERT, District Judge
MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff's Objection to
Defendant's Bill of Costs (Doc. 198). For the following reasons,
Plaintiff's Objection is DENIED.
Plaintiff claims that because the Court did not address costs
in its order granting summary judgment (and the judgment itself)
and because she appealed the Court's decision, Defendant's Bill
of Costs is not properly before the Court. She is not objecting
to any specific assessment of costs in this case, as the clerk
has not taken action on Defendant's Bill. Rather, Plaintiff
appears to claim that the Court's failure to address costs in its
order and judgment precludes the clerk from taxing costs.
Plaintiff's argument is without merit. The Seventh Circuit has
held that a judgment not mentioning costs is presumed to be a
judgment permitting costs. Congregation of the Passion, Holy
Cross Province v. Touche, Ross & Co., 854 F.2d 219, 222 (7th
Cir. 1988). As such, the failure of the Court to address costs in
its order and judgment does not preclude the Clerk from taxing
costs upon the motion of the prevailing party. Further, the
Seventh Circuit has held that a district court may award costs
while a substantive appeal is pending. Lorenz v. Valley Forge
Ins. Co., 23 F.3d 1259, 1260-61 (7th Cir. 1994). Thus, the
pendency of the appeal does not preclude the Clerk from taxing
costs after a final judgment. Federal Rule of Civil Procedure 54(d)(1) provides that "costs
other than attorneys' fees shall be allowed as of course to the
prevailing party unless the court otherwise directs." After a
motion for costs, the clerk may tax these costs on one day's
notice. Id. The losing party must object to the clerk's
assessment within five days for the Court to review that action.
Id. This Rule establishes a process for the taxation of costs
whereby the taxing of routine costs is ordinarily settled by the
clerk. Congregation of the Passion, 854 F2d at 222. The losing
party may obtain review of the clerk's decision by objecting to
the clerk's assessment. Id. At that point, the district court
reviews the assessment. Here, the clerk has not responded to
Defendant's Bill of Costs. Therefore, Plaintiff has objected too
early in the process.
In any event, Plaintiff has failed to show that Defendants are
not entitled to an award of costs. Courts have often observed
that Rule 54(d) creates a strong presumption that the prevailing
party will recover costs. Weeks v. Samsung Heavy Industries Co.,
Ltd., 126 F.3d 926, 945 (7th Cir. 1997); Congregation of the
Passion, 854 F.2d at 222. This presumption is so strong in fact,
that "unless and until the losing party affirmatively shows that
the prevailing party is not entitled to costs, the district court
must award them, `as of course.'" Congregation of the
Passion, 854 F.2d at 222. (emphasis added). "Only misconduct by
the prevailing party worthy of a penalty or the losing party's
inability to pay will suffice to justify denying costs." Weeks,
126 F.3d at 945. Plaintiff has not made such claims. Plaintiff's
objection is therefore DENIED. The Clerk of the Court is
DIRECTED to proceed with the taxation of costs in response to
Defendant's Bill of Costs.
IT IS SO ORDERED.
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