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Hardwick v. Sunbelt Rentals

August 16, 2010

EDDIE HARDWICK, PLAINTIFF,
v.
SUNBELT RENTALS, INC. AND INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL NO. 965, DEFENDANTS.



The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

ORDER & OPINION

This matter is before the Court on Defendants' Bills of Costs (Docs. 66 & 67), Plaintiff's Objections to the Bills of Costs (Docs. 68 & 69), and Plaintiff's Motion to (1) Stay Awarding of Court Costs, (2) Stay Enforcement of any Court Costs Awarded, and (3) Waive the Requirement of any Supersedeas Bond, Pending Appeal (Docs. 70 & 71). On June 18, 2010, the Court entered judgment in favor of Defendants on Plaintiff's suit to enforce an arbitration award, finding that Defendant International Union of Operating Engineers Local No. 965 did not breach its duty of fair representation toward Plaintiff, which finding controlled the outcome of the claim against both Defendants. (Docs. 58 & 59). Thereafter, Defendants filed their Bills of Costs, to which Plaintiff objects. Defendants will be awarded their costs in this matter as explained below, and Plaintiff's Motion is denied.

Essentially, Plaintiff first contends that the Court is without jurisdiction to award costs to Defendants, as he has filed an appeal. Then, he asks for the Court to stay its award of costs to Defendants. Alternatively, in case the Court finds it has jurisdiction and decides against granting Plaintiff's request to stay the award of costs, Plaintiff asks the Court to stay the enforcement of the judgment pending the appeal, without requiring a supersedeas bond.

MOTION TO STAY AWARD OF COSTS

In his Objections to the Bills of Costs, Plaintiff first asserts that the Court cannot rule on the Bills of Costs, as the Court was divested of jurisdiction to rule on them once he filed his appeal; he cites no authority for this proposition, which is incorrect. (Docs. 68 & 69). The Court is certainly not divested of jurisdiction to rule award costs simply because Plaintiff has filed an appeal. See, e.g., Kusay v. U.S., 62 F.3d 192, 194 (7th Cir. 1995) (While appeal is pending, "district court may address ancillary questions such as costs."); Lorenz v. Valley Forge Ins. Co., 23 F.3d 1259, 1260 (7th Cir. 1994) ("a district court may award costs even while the substantive appeal is pending"). Plaintiff alternatively asserts that the Court has discretion to stay the award of costs pending the outcome of his appeal under Federal Rule of Civil Procedure 62 and Federal Rule of Appellate Procedure 8. (Doc. 71). Though both of these rules deal with a stay of a judgment's enforcement, not of the entry of the judgment itself, the Court assumes that it has discretion to stay the award of costs, but declines to do so here.*fn1 Plaintiff states that he has limited resources with which to pay a judgment for costs, that he has reasonable prospects for success on appeal, and that an attempt to execute a judgment against him "could result in unnecessary time and expense to all parties through garnishment and execution procedures," while the Defendants could be required to reimburse him if he is successful on appeal. (Doc. 70). Plaintiff's reasons for requesting a stay of the Court's decision on costs are the same as those given for his request for a stay of enforcement of the costs award without a supersedeas bond, are more appropriately considered with respect to the enforcement of the costs judgment, and do not indicate to the Court what harm he would incur if the Court merely awards Defendants costs via the entry of an amended judgment; whether to stay enforcement of the amended judgment or to require a supersedeas bond if a stay of enforcement is granted are separate questions, which are taken up below. Therefore, the Court denies Plaintiff's request to stay its decision to award costs to Defendants.

AWARD OF COSTS

In his Objections to each of the Defendants' Bills of Costs, Plaintiff asserts that the Bills of Costs were untimely filed and that they fail to comply with 28 U.S.C. § 1924. (Docs. 68 & 69). First, Plaintiff asserts that judgment was entered on June 17, 2010, and that the July 2, 2010 Bills of Costs were thus filed 15 days after entry of judgment. The Court notes that the judgment was dated and stamped June 17, but was e-filed on June 18 by the Clerk of the Court. (Doc. 59). This discrepancy is of no moment, however. Though Plaintiff does not cite to authority for his contention that the Bills of Costs were untimely after 14 days, the Court assumes that he relies on the statement in Federal Rule of Civil Procedure 54(d)(1) that "[t]he clerk may tax costs on 14 days' notice." However, under this Court's Local Rule 54.1, a prevailing party's Bill of Costs is to be filed within 30 days after entry of judgment. Therefore, no matter which date the judgment was entered, Defendants' Bills of Costs were timely filed.

In addition, Plaintiff asserts that each Bill of Costs fails to attach an affidavit as required by 28 U.S.C. § 1924. Alternatively, although the Bill of Costs form contains a declaration at the bottom of the first page, with an electronic signature, the declaration, if accepted as the affidavit required by 28 U.S.C. § 1924, fails to specifically reference each item of claimed expense, but states only generally that the "foregoing costs are correct and necessarily incurred." (Docs. 68 at 1 & 69 at 1). This argument is without merit. As Defendants point out, their Bills of Costs were submitted on the form required by Local Rule 54.1, form AO 133. This form contains an itemization of each type of cost claimed, as well as a Declaration, made under penalty of perjury, that the claimed "costs are correct and were necessarily incurred in this action and that the services for which fees have been charged were actually and necessarily performed." The Declaration suffices as the affidavit required by § 1924, and, as explained by Judge McCuskey (now Chief Judge) of this District, the averment on this form that "the costs were actually and necessarily performed" is not "too conclusory to support an award," so long as the prevailing party's "attachments show clearly the nature and amount of each charge." Farella v. Hockaday, 304 F.Supp.2d 1076, 1082 (C.D. Ill. 2004).

Federal Rule of Civil Procedure 54(d)(1) provides that costs are to be granted to a prevailing party. The costs recoverable under Rule 54(d) are listed in 28 U.S.C. § 1920, which provides that a prevailing party may recover

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation ...


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