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Fairley v. Andrews

April 8, 2008


The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge


Before the Court are Defendants' three separate bills of costs pursuant to Federal Rule of Civil Procedure 54(d)(1). (R. 1031-1, 1033-1, 1034-1). The Court presumes familiarity with its previous orders in this lawsuit, as well as Judge Castillo's orders while he was presiding judge over this matter. Because several issues presented by Plaintiffs and Defendants overlap, the Court first addresses the bills of costs in general. Thereafter, the Court will determine whether the costs Defendants seek in each of their bill of costs are recoverable and reasonable.


Rule 54(d)(1) provides that "costs other than attorney's fees shall be allowed as of course to the prevailing party unless the court otherwise directs." See Fed.R.Civ.P. 54(d)(1). "[A] district court may not tax costs under Rule 54(d) unless a federal statute authorizes an award of those costs." Republic Tobacco Co. v. North Atl. Trading Co., Inc., 481 F.3d 442, 447 (7th Cir. 2007). The list of recoverable costs pursuant to 28 U.S.C. § 1920, includes (1) fees of the clerk and marshal, (2) fees for transcripts, (3) witness fees and expenses, (4) fees for copies of papers necessarily obtained for use in the case, (5) docket fees, and (6) compensation for court-appointed experts and interpreters. See id. Rule 54(d)(1) "provides a presumption that the losing party will pay costs but grants the court discretion to direct otherwise." Rivera v. City of Chicago, 469 F.3d 631, 634 (7th Cir. 2006). The Seventh Circuit recognizes "only two situations in which the denial of costs might be warranted: the first involves misconduct of the party seeking costs, and the second involves a pragmatic exercise of discretion to deny or reduce a costs order if the losing party is indigent." Mother & Father v. Cassidy, 338 F.3d 704, 708 (7th Cir. 2003); see also Rivera, 469 F.3d at 634-35. Taxing costs against the non-prevailing party requires two inquiries: (1) whether the cost is recoverable; and (2) whether the amount assessed is reasonable. See Majeske v. City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000).


I. Plaintiffs' Arguments Applying to All Defendants

A. Defense Counsels' Conduct

First, Plaintiffs contend that the Court should deny costs under Rule 54(d)(1) based on defense counsels' misconduct. See Mother & Father, 338 F.3d at 708. As the Seventh Circuit instructs "only misconduct by the prevailing party worthy of a penalty (for example, calling unnecessary witnesses, raising unnecessary issues, or otherwise unnecessarily prolonging the proceedings), or the losing party's inability to pay will suffice to justify denying costs." Congregation of the Passion v. Touche, Ross, & Co., 854 F.2d 219, 222 (7th Cir. 1988); see also Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 945 (7th Cir. 1997) (same); Overbeek v. Heimbecker, 101 F.3d 1225, 1228 (7th Cir. 1996) ("Rule 54(d)(1) gives a district court discretion to deny costs when exceptional circumstances are present."). In Overbeek, the Seventh Circuit concluded that the district court did not abuse its discretion in denying costs because the prevailing party's counsel caused a decade of protracted and needless litigation, which included counsel's conduct in: (1) refusing multiple settlement offers of the insurance policy limit; (2) needlessly pursuing a trial; (3) appealing the jury's decision not to award punitive damages even though defendants were judgment-proof; (4) vanishing for large periods of time; and (5) making frivolous arguments. Id.

Plaintiffs argue that although this Court presided over the less contentious stage of the proceedings than Judge Castillo, defense counsels' misconduct warrants a penalty. To recap, this lawsuit was filed on July 25, 2003, and was pending before Judge Castillo for over two and a half years before Judge Castillo granted Defendants' Motions for Recusal on March 16, 2006.

(R. 659-1.) The next day, the Executive Committee reassigned the matter to this Court. (R. 666-1.) Thereafter, this Court presided over the remainder of this lawsuit and entered judgment in Defendants' favor on September 25, 2007. As such, this lawsuit lasted exactly 50 months -- approximately 32 months before Judge Castillo and 18 months before this Court. In other words, Judge Castillo presided over 64% of this case and the Court presided over the remaining 36%. In support of their argument that defense counsel engaged in misconduct worthy of a penalty, Plaintiffs point to incidents that occurred during the 32 month period when Judge Castillo was the presiding judge. Specifically, Plaintiffs contend that defense counsel: (1) consistently refused to comply with their discovery obligations; (2) engaged in unfocused and ill-advised discovery; (3) displayed a lack of candor to the Court and Plaintiffs; (4) allowed their clients to engage in obstructive behavior; and (5) consistently refused to engage in good faith settlement discussions. Plaintiffs support their allegations with facts in the record and Judge Castillo's findings in his order granting Defendants' motion for recusal. Prior to March 16, 2006, for example, Judge Castillo presided over 146 contested motions -- mostly concerning discovery disputes -- the vast majority of which were resolved in Plaintiffs' favor. Plaintiffs' allegations are also supported by Judge Castillo's recusal order, including his findings that: (1) Defendants repeatedly refused to comply with discovery obligations and engaged in a pattern of discovery delay; (2) Defendants' discovery requests were ill-timed and unfocused causing increased costs in the case; (3) defense counsels' conduct lacked candor in serving a final interrogatory involving 80 witnesses; (4) Defendant Sheahan engaged in obstructive behavior at his deposition; and (5) defense counsel displayed an "obstinate refusal to consider settlement." Fairley v. Andrews, 423 F.Supp.2d 800, 807-11, 814, 821-23 (N.D. Ill. 2006). In granting Defendant's recusal motion, Judge Castillo concluded:

As documented repeatedly in this opinion, Defendants' attorneys engaged in repeated obstreperous pretrial conduct. Defendants were themselves sanctioned for failure to comply with this Court's discovery orders on multiple occasions. While attorneys should be vigorous advocates for their clients -- within the bounds of appropriate civil behavior -- they are also supposed to act as counselors and give reasoned and principled legal advice to their clients. During the 965 days this Court has presided over this lawsuit, this Court has seen scant evidence that the attorneys for the moving Defendants understand these important principles.

Id. at 822.

Defense counsels' misconduct before Judge Castillo parallels that of the prevailing party's counsel in the Seventh Circuit's Overbeek decision. Specifically, as found by Judge Castillo, the prevailing party's counsel caused protracted and needless litigation, refused to consider settlement, and engaged in obstructive behavior. See Overbeek, 101 F.3d at 1228; see also Congregation of the Passion., 854 F.2d at 222. Under these circumstances, the Court, in its discretion, concludes that exceptional circumstances are present warranting a deduction for defense counsels' misconduct during the first 32 months of this lawsuit before Judge Castillo. See Overbeek, 101 F.3d at 1228.

After March 2006, this Court presided over this lawsuit. Plaintiffs admit that the second stage of this lawsuit, namely, the 18 months in front of this Court, was the less contentious stage of the proceedings. As far as defense counsels' conduct after March 2006, Plaintiffs point to counsels' numerous motions for reconsideration and Defendants' "confusing and contentious" motions in limine. As much as district courts caution litigants about the appropriate scope of motions for reconsideration, the Court cannot conclude that Defendants' motions for reconsideration filed before this Court rise to the level of conduct that warrants a penalty as illustrated in the Overbeek decision. In addition, although Defendants' various motions in limine overlapped, this overlap does not amount to misconduct warranting a penalty.

Accordingly, the Court will deduct 64% of the costs -- after determining whether the costs Defendants seek are recoverable and reasonable -- which represents the 32 months this case was before Judge Castillo based on defense counsels' conduct prior to March 17, 2006. The Court, however, will not penalize defense counsel for their conduct during the second stage of this lawsuit because defense counsels' conduct did not warrant it.

B. Fairley's Indigence

Next, Plaintiffs argue that because Fairley is indigent, he should be spared the imposition of costs in this matter. When costs are awarded under Rule 54(d) against more than one non-prevailing party, "the presumptive rule is joint and several liability unless it is clear that one or more of losing parties is responsible for a disproportionate share of the costs." Anderson v. Griffin, 397 F.3d 515, 522-23 (7th Cir. 2005).

The first step in addressing Fairley's argument is determining whether he is "incapable of paying court-imposted costs at this time or in the future." Rivera, 469 F.3d at 635 (citation omitted). Fairley has the burden of providing sufficient documentation to support such a finding. Id. "This documentation should include evidence in the form of an affidavit or other documentary evidence of both income and assets, as well as a schedule of expenses." Id. As the Rivera court further explained:

Requiring a non-prevailing party to provide information about both income/assets and expenses will ensure that district courts have clear proof of the non-prevailing party's dire financial circumstances. Moreover, it will limit any incentive for litigants of modest means to portray themselves as indigent.


Fairley has provided the Court with an affidavit detailing his wife's income, his debt, and a schedule of his expenses. Fairley is unemployed and does not aver that he has assets. Assuming Fairley's averments that his family of four has $3,635 worth of monthly expenses and his wife brings home approximately $2,200 a month in income are correct, the Fairley household income is above the Department of Health & Human Services 2008 Poverty Guidelines. See Moreover, even though the Fairley household's expenses are more than their present income, Fairley has not provided sufficient documentation that he cannot pay the costs of this ...

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