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Nance v. City of Elgin

May 3, 2011

NANCE
v.
CITY OF ELGIN



Name of Assigned Judge Blanche M. Manning Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

The plaintiffs' motion for reconsideration [244--1] is granted in part as follows: (1) the court's December 17, 2010, award of costs is vacated; (2) the objection to an award of expert fees is sustained; (3) the objection to the $3.80 per page rate for transcripts is sustained and the award for transcript costs shall be reduced to a rate of $3.65 per page; and (4) the objection based upon a purported inability to pay is overruled. The City of Elgin is directed to file a revised bill of costs conforming to this order no later than May 17, 2011.

O [ For further details see text below.] Docketing to mail notices.

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STATEMENT

Following its success at trial on the plaintiffs' claims of civil rights violations under 42 U.S.C. § 1983, defendant City of Elgin filed a bill of costs seeking $59,055.42. This amount included expert fees of $50,785.01, which are not normally available as part of an award of costs. See 28 U.S.C. § 1920 (listing categories of costs that can be awarded under Federal Rule of Civil Procedure 54(d)(1)). Originally, the City of Elgin sought to recover the expert fees through a motion for sanctions presented to the assigned magistrate judge, but the magistrate judge denied the motion without prejudice to renewal after trial. The magistrate judge also observed that if the City of Elgin prevailed at trial, it might be able to recover the expert fees as costs. See Minute Entry [144-1] dated June 21, 2010.

Upon receiving the City of Elgin's bill of costs, the court gave plaintiffs Anthony and Bettie Nance an opportunity to respond, but they never did. Based on the Nance's failure to object, the court reviewed the costs for reasonableness and, on December 17, 2010, awarded the full $59,055.42.

A short time later, the Nances, who were now proceeding pro se, filed a motion entitled "Motion to Reconsider," in which they advised the court that they had thought they had filed a motion for an extension of time to respond to the defendant's bill of costs, but learned only after receiving the court's December 17, 2010, order that the motion for an extension of time had never been docketed. In light of the circumstances, the court allowed the Nances to file a motion to reconsider and advised the parties that it would consider any objections to costs de novo.

ANALYSIS

Federal Rule of Civil Procedure 54(d) provides that, "[e]xcept when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs." Under Rule 54, an award of costs is discretionary, but the prevailing party is prima facie entitled to costs and the losing party bears the burden of overcoming this presumption. McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1993). To overcome the presumption in Rule 54(d)(1) that the losing party pays costs, the court must find that the losing party cannot pay costs either now or in the future. Rivera v. City of Chicago,469 F.3d 631, 635 (7th Cir. 2006). In this regard, the losing party bears the burden of providing documentation regarding his financial status. Id. The court must then consider "the amount of costs, the good faith of the losing party, and the closeness and difficulty of the issues raised." Id.; see also Congregation of the Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219, 221 (7th Cir. 1988) (a district court should award costs "unless it states good reasons for denying them;" such reasons include misconduct by the prevailing party, such as calling unnecessary witnesses, raising unnecessary issues, or otherwise unnecessarily prolonging proceedings, or the losing party's inability to pay).

A. Nances' Objections

Before the court is the Nance's motion to reconsider. In it, they set out three objections to the ...


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