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Kenneth Kidwell v. Joseph S. Eisenhauer

June 30, 2011

KENNETH KIDWELL, PLAINTIFF,
v.
JOSEPH S. EISENHAUER, LARRY THOMASON, DOUG MILLER AND BOB RICHARD, DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

E-FILED

Thursday, 30 June, 2011 03:13:24 PM

Clerk, U.S. District Court, ILCD

OPINION

This case is before the court for ruling on the Bill of Costs (#29) and Motion for Fees and Costs as Prevailing Party (#30) filed by Defendants Joseph S. Eisenhauer, Larry Thomason, Doug Miller and Bob Richard. Plaintiff, Kenneth Kidwell, has filed a Memorandum of Law in Opposition to Petition to Assess Attorney's Fees (#37). This court has carefully considered the arguments of the parties. Following this careful and thorough review, Defendants' Bill of Costs (#29) is ALLOWED and Defendants' Motion for Fees and Costs (#30) is DENIED as to the request for attorney's fees.

BACKGROUND

Plaintiff filed a Complaint (#1) in this court under 42 U.S.C. § 1983 alleging that he had been retaliated against for exercising his rights under the First Amendment. On April 12, 2011, this court entered a lengthy Opinion (#25) and granted Defendants' Motion for Summary Judgment. This court determined that there was no evidence to support Plaintiff's contention that he was disciplined because he spoke out at two union meetings. This court concluded that, "[s]tated simply, the record firmly supports the conclusion that Defendants' actions regarding Plaintiff were justified based upon Plaintiff's conduct." This court further stated that the "fact that Plaintiff spoke at two union meetings does not mean that Defendants could not take actions regarding Plaintiff which were clearly warranted based upon Plaintiff's conduct." This court found that Plaintiff had made no showing that there was a genuine dispute of material fact regarding whether his speech at the union meetings was the "but-for" cause of Defendants' actions so that Defendants were entitled to summary judgment on all of Plaintiff's claims.

COSTS AND ATTORNEY'S FEES

1. BILL OF COSTS

On April 21, 2011, Defendants filed their Bill of Costs (#29). Defendants sought costs in the amount of $3,381.65 and attached documentation detailing the recoverable costs they incurred in successfully defending this action. Plaintiff has not objected to any of the costs requested.

Rule 54(d) provides that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party." Fed. R. Civ. P. 54(d)(1). Accordingly, Defendants' Bill of Costs (#29) is allowed and Plaintiff is ordered to pay Defendants' costs in the total amount of $3,381.65.

2. ATTORNEY'S FEES

Defendants also filed, on April 21, 2011, a Motion for Fees and Costs as Prevailing Party (#30). Defendants argued that a prevailing defendant may obtain attorney's fees if the plaintiff litigated "in bad faith." Defendants also argued that a plaintiff should be assessed his opponent's attorney's fees if the court finds that the plaintiff's claim was "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Defendants argued that Plaintiff pressed several claims of retaliation in his Complaint and throughout discovery only to completely abandon them in his response to Defendants' Motion for Summary Judgment.

Defendants sought an award of $14,665 in attorney's fees. These fees were billed for preparing the Motion for Summary Judgment, reviewing Plaintiff's summary judgment ...


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