The opinion of the court was delivered by: Joe Billy McDade United States District Judge
Before the Court is Plaintiff's Motion to Reconsider (Doc. 138) in which Plaintiff asks this Court to reconsider its Order (Doc. 137) denying Plaintiff's first Motion for Modification of Record on Appeal (Doc. 136). Plaintiff has since filed three additional Motions for Modification of Record on Appeal. (Doc 139; Doc. 144; Doc. 148.)
Also before the Court is Defendant's Motion to Assess Costs (Doc. 125) and accompanying Memorandum (Doc. 126). Defendant has filed a Bill of Costs in which Defendant requests $16,978.86 in costs for defending the underlying suit. (Doc. 127.) Plaintiff originally asked that his Objection to the Bill of Costs (Doc. 142) be filed under seal. Plaintiff has now filed a Motion to Withdraw the Order placing his Objection to the Bill of Costs under seal. (Doc. 141.) Lastly, Plaintiff has filed a Motion to File (Doc. 145) in which Plaintiff does not ask for any relief but simply informs the Court that he will not be requesting a transcript. This last Motion is MOOT. For the following reasons, the rest of Plaintiff's Motions are DENIED and Defendant's Bill of Costs is GRANTED.
Plaintiff's underlying case was an employment discrimination suit brought against Mitsubishi Motors Manufacturing of America (MMNA). MMNA brought a Motion for Summary Judgment in the underlying suit and this Court granted the Motion on Summary Judgment on February 2, 2006. After the Defendant filed a Bill of Costs it became apparent that Plaintiff wished to proceed without the benefit of counsel. On March 5, 2007, this Court held a telephonic conference to ensure that Plaintiff wished to proceed pro se. At the hearing, Plaintiff was adamant about his wish to proceed pro se. Accordingly, the Court granted Plaintiff's Counsel's Motion to Withdraw. Now, Plaintiff has filed numerous Motions seeking to modify the record for appeal and has filed his objection to the bill of cost without the benefit of counsel.
1. Modification of the Record
Plaintiff has four motions seeking to modify the record on appeal under Fed.R.App.Pro. 10(e)(2). Rule 10(e)(2) allows a district court to correct a record, "if anything material to either party is omitted from or misstated in the record by error or accident.." Our Appellate Court has held that "[t]he purpose of Rule 10(e) is to ensure that the court on appeal has a complete record of the proceedings leading to the ruling appealed from, not to facilitate collateral attacks on the verdict." United States v. Hillsberg, 812 F.2d 328, 336 (7th Cir. 1987). Furthermore, Rule 10(e) does not allow for the admission of any document which was not made a part of the record in the district court. Shasteen v. Saver, 252 F.3d 929 (7th Cir. 2001). Lastly, a district court is correct in denying a motion under Rule 10(e) when an appellant simply wishes to add further support for his theories on appeal by adding material which was not before the district court when the district court reached its substantive ruling. United States v. ElizaldeAdame, 262 F.3d 637 (7th Cir. 2001). The job of an appellate court is to evaluate the soundness of the trial court's decision based on the evidence that was considered by the trial court. Id. at 641. An accurate record of the evidence that was before the trial court, and only the evidence which was before the trial court, is critical to enable the appellate court to make this evaluation. Id.
Plaintiff now presents numerous documents in his multiple motions which he feels the Court should have considered when ruling on the Motion for Summary Judgment. Plaintiff then points to numerous reasons why he disagrees with the conclusions reached by this Court. He also charges that his counsel was ineffective for failing to include the Response to the Motion for Summary Judgment. However, at no point does Plaintiff point to any piece of evidence which was considered or relied upon by this Court, but which is not part of the record. In fact, Plaintiff acknowledges that the numerous pieces of evidence which he wishes to submit were not part of the record when this Court ruled on the Motion for Summary Judgment. (Doc. 138 at 3; Doc. 139 at 1; Doc. 144 at 1; Doc. 148 at 1.) Accordingly, this Court can not now modify the record on appeal to include supplemental material which was never presented to this Court.
Since Plaintiff has not pointed to any error in record keeping or other error from mistakenly relying upon a document which was not in the record, Plaintiff's numerous motions seeking to supplement the record on appeal are denied.
Pursuant to Federal Rule of Civil Procedure 54(d)(1), "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs...." Consistent with this directive, "the prevailing party is prima facie entitled to costs and it is incumbent on the losing party to overcome the presumption." McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994) (emphasis added) (citations omitted). This "presumption [favoring the award of costs] 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 v. Samsung Heavy Indust. Co. Ltd., 126 F.3d 926, 945 (7th Cir. 1997).
Generally, only two reasons justify denying costs: (1) misconduct by the prevailing party worthy of penalty, or (2) the losing party's inability to pay. Id. In the case at bar, Plaintiff makes neither of these arguments. Instead, Plaintiff argues that he should only be assessed a total of $1,299.18 in Costs.
Thus, we turn to the question of what costs are recoverable. Under 28 U.S.C. § 1920, certain enumerated costs may be covered by a prevailing party: (1) fees of the clerk and marshal; (2) fees of the court reporter for all and any part of the stenographic transcript necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and copies of papers necessarily obtained for use in the case; (5) docket fees under 28 U.S.C. 1923; and (6) compensation of Court-appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under 28 U.S.C. § 1828. Provided that they fall within one of these statutory categories, costs are recoverable if they are both reasonable and necessary to the litigation. ...