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Smith v. Augustine

June 18, 2009


The opinion of the court was delivered by: Hon. Harry D. Leinenweber


Before the Court are the bill of costs submitted by Defendants Augustine, Burne, and Bejgrowicz (collectively, the "Individual Defendants") and the Village of Romeoville (the "Village") after the Court granted summary judgment in their favor on February 25, 2009. In the Individual Defendants' bill of costs, they request that Plaintiff Dawn Garner Smith be taxed a total of $25,399.47 in costs pursuant to 28 U.S.C. § 1920, FED. R. CIV. P. 54(d), and Local Rule 54.1. The Village separately requests that Plaintiff be taxed a total of $13,724.68 in costs. Plaintiff raises various objections. For the reasons set forth below, the Court grants Defendants' bills of costs in part and orders Plaintiff to pay $21,765.24 to the Individual Defendants and $12,751.34 to the Village.


FED. R. CIV. P. 54(d) provides that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs -other than attorneys' fees -- should be allowed to the prevailing party." Fed. R. Civ. P. 54(d)(1). 28 U.S.C. § 1920 specifies that the following costs may be recovered under Rule 54(d): (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.

Rule 54(d) creates a presumption favoring the award of costs to the prevailing party. Coyne-Delany Co., Inc. v. Capital Development Bd. of State of Ill., 717 F.2d 385, 390 (7th Cir., 1983). However, as the Supreme Court has explained, Rule 54(d) does not give a court "unrestrained discretion to tax costs to reimburse a winning litigant for every expense he has seen fit to incur. . . . [I]tems proposed by winning parties as costs should always be given careful scrutiny." Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235 (1964) (overruled on other grounds). Thus, the Defendants are entitled to recover costs only if the expenses are allowed under 28 U.S.C. § 1920, and the expenses are reasonable, both in amount and necessity to the litigation. Deimer v. Cincinnati Sub-Zero Products, Inc., 58 F.3d 341, 345 (7th Cir., 1995).

Plaintiff raises three objections to Defendants' bills of costs: (1) the Court should not assess any costs before the Court of Appeals rules on Plaintiff's pending appeal; (2) Plaintiff is unable to pay the proposed costs because of her income level and other financial obligations; and (3) various costs listed by Defendants are not properly taxable. The Court addresses the first two objections before turning to a full examination of Defendants' bills of costs.

A. Plaintiff's Pending Appeal

Plaintiff first contends that the Court should wait to tax costs until after the Court of Appeals rules on Plaintiff's pending appeal because "[b]ills of costs are usually presented after appeals." Popeil Bros., Inc. v. Schick Elec., Inc., 516 F.2d 772, 777 (7th Cir., 1975). However, it is recognized that "a district court may award costs even while the substantive appeal is pending" and costs can later be appealed separately from the merits. Lorenz v. Valley Forge Ins. Co., 23 F.3d 1259, 1260 (7th Cir., 1994); see Wielgos v. Commonwealth Edison Co., 892 F.2d 509, 511-12 (7th Cir., 1989).

The case on which Plaintiff primarily relies, Popeil Bros., is limited by Plaintiff's other cited case, Congregation of the Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219 (7th Cir., 1988), to circumstances where there is no local rule regarding the time for filing a bill of costs. The Northern District of Illinois now has such a rule. Local Rule 54.1 gives prevailing parties thirty days from the entry of judgment to file a bill of costs. Here, there is no question that Defendants were the prevailing parties and that they timely filed their bills of costs pursuant to Local Rule 54.1. As such, the Court may properly examine and order the costs to be paid now, rather than waiting for the outcome of Plaintiff's appeal.

B. Plaintiff's Claimed Inability to Pay Costs

Plaintiff also claims that she is unable to pay Defendants' costs because of her income level and other financial obligations. Plaintiff cites Rivera v. City of Chicago, 469 F.3d 631 (7th Cir., 2006), for the contention that a losing party's claimed inability to pay costs can be enough to overcome the Rule 54(d) presumption and prevent a court from assigning costs. Plaintiff misconstrues the indigency analysis set forth in Rivera. Rivera requires the court to "make a threshold factual finding that the losing party is incapable of paying the court-imposed costs at this time or in the future" before examining "the amount of costs, the good faith of the losing party, and the closeness and difficulty of the issues raised by a case" to determine whether allowing costs is still reasonable. Rivera, 469 F.3d at 635 (internal quotation omitted). Thus, under Rivera, the court must first determine whether the losing party meets the threshold of indigence before applying the mitigating factors to reduce costs as necessary. See Rivera, 469 F.3d at 635; Vail v. Raybestos Products Co., No. 06-544, 2008 WL 3819820, at *3 (S.D.Ind., July 3, 2008).

In the instant case, Plaintiff has failed to make a threshold showing of indigence. There is no reason to believe that she cannot pay costs either now or in the future. Plaintiff's self-described average income is $55,000 per year, and she owns a house and a new car. Furthermore, Plaintiff has submitted no evidence that she expects to lose her job or income at any time in the near future. Plaintiff's claim of financial inability to pay costs simply cannot stand. See Rivera, 469 F.3d 631 (rejecting claim of indigency where plaintiff was a single mother of four children with a monthly income of $1,800, no real estate or other assets and no source of child support payments).

C. Individual Defendants' Bill of Costs

The Individual Defendants seek a total of $25,399.47 in their bill of costs for the following: (1) $13,058.97 for deposition and transcript fees, (2) $1,864.80 for transcripts of the related criminal trial; (3) $674.40 for attorney travel costs; (4) $6,689.97 for witness and expert witness fees; (5) $1,965.63 for subpoena fees; (6) $429.00 for costs of service; and (7) ...

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