Name of Assigned Judge Robert M. Dow, Jr. Sitting Judge if Other or Magistrate Judge than Assigned Judge
For the reasons set forth below, the Court respectfully denies Plaintiff's requests for bill of costs and attorneys' fees . However, court-appointed counsel may submit a request for reimbursement of expenses pursuant to Local Rule 83.40 and the Regulations Governing the Prepayment and Reimbursement of Expenses in Pro Bono Cases on or before 10/13/2012.
O[ For further details see text below.] Docketing to mail notices.
After a four-day trial, a jury returned a verdict in favor of Plaintiff Bernard Ellis and against Defendant Edward McKinney as to Plaintiff's only claim, an excessive force claim brought under 42 U.S.C. § 1983. The jury awarded Ellis $1 in compensatory damages for his claim, but did not award any punitive damages. At the same time, the jury returned a verdict in favor of the other Defendant, William Jones, on Ellis' excessive force claim. Pending before the Court are two separate requests by Plaintiff seeking compensation based upon the result of the trial in this case: (i) "costs" pursuant to Rule 54 of the Federal Rules of Civil Procedure, and (ii) attorneys fees pursuant to 42 U.S.C. § 1988. For the reasons set forth below, Plaintiff's requests are denied. However, court-appointed counsel may submit a request for reimbursement of expenses pursuant to Local Rule 83.40 and the Regulations Governing the Prepayment and Reimbursement of Expenses in Pro Bono Cases on or before 10/13/2012.
Plaintiff seeks reimbursement for a total of $2,223.56 in costs. Defendants contend that the request should be denied because Plaintiff's submission is deficient under the applicable rules and because, in a case with a mixed result, each side should be required to bear its own costs.
Rule 54(d)(1) provides that "costs -- other than attorney's fees -- should be allowed to the prevailing party." Fed. R. Civ. P. 54(d)(1). The Rule "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). Typically, 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). 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 Republic Tobacco Co. v. N. Atl. Trading Co., Inc., 481 F.3d 442, 447 (7th Cir. 2007).
Before the Court can award costs under Rule 54(d), it must determine who "prevailed" in the lawsuit. "A party prevails for purposes of Rule 54(d) when a final judgment awards it substantial relief." Smart v. Local 702 Int'l Bhd. of Elec. Workers, 573 F.3d 523, 525 (7th Cir. 2009) (per curiam); see also Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 641 (7th Cir. 1991). "When one party gets substantial relief it 'prevails' even if it doesn't win on every claim." Slane v. Mariah Boats, Inc., 164 F.3d 1065, 1068 (7th Cir. 1999). The "determination of who is the prevailing party for purposes of awarding costs should not depend on the position of the parties at each stage of the litigation but should be made when the controversy is finally decided." Republic Tobacco, 481 F.3d at 446.
Here, the jury's verdict was mixed. See Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075 (7th Cir. 1999) ("courts have especially broad discretion to award or deny costs in mixed result cases, including cases in which liability was established but recovery was nominal relative to what was sought.") (internal citation omitted). The jury concluded that one of two Defendants used excessive force, but only awarded Plaintiff $1 in compensatory damages. Numerous courts in this Circuit have addressed the appropriate exercise of their discretion with respect to awards of costs in such "mixed result" cases. In Testa v. Mundelein, 89 F.3d 443 (7th Cir. 1996), where the plaintiff lost before the jury with respect to his § 1983 false arrest claim, but received a $1,500 verdict on his state law malicious prosecution claim, the district judge ordered all parties to bear their own costs. Testa, 89 F.3d at 444. The Court of Appeals affirmed, noting the "wide discretion" enjoyed by district judges in deciding to award reasonable costs. Testa, 89 F.3d at 447; see also Gavoni, 164 F.3d at 1075; Gonzalez v. City of Elgin, 2010 WL 4636638, at *2 (N.D.Ill. November 8, 2010) (declining to award costs where a jury concluded that three of seven individually named defendants were guilty of violating two of six plaintiffs' constitutional and state law rights and a total of $35,000 in compensatory and $18,500 in punitive damages were awarded to the two plaintiffs who prevailed).
If the results in the above-cited cases constituted a "split"/mixed result verdict, the factual circumstances here -- summary judgment for the City, not guilty as to one police officer, and a nominal damages award ($1) against the other -- present an even stronger case for the Court to conclude that this was a "mixed" result case. Under these circumstances, neither Defendants nor Plaintiff prevailed as to a "substantial" part of the litigation. As such, the Court concludes that the appropriate disposition of the costs issues in this case is that the parties must bear their own costs. See Testa, 89 F.3d at 447; Gonzalez, 2010 WL 4636638, at *2.
At the same time, the Court recognizes that counsel for Plaintiff was recruited to serve as pro bono counsel in this case (by Judge Shadur, prior to the transfer of the case to the undersigned judge's docket). In recognition of (1) counsel's considerable efforts in the case and (2) the pendency of the request for costs and attorneys' fees since the entry of judgment in this case, the Court, on its own motion, finds good cause to extend the period for pro bono counsel to file a request for reimbursement of expenses from the District Court Fund until 10/13/2012. See Local Rule 83.40; see also Regulations Governing the Prepayment and Reimbursement of Expenses in Pro Bono Cases, D.C.F. Reg. 3B.
In order to entice competent attorneys to prosecute civil rights cases, Congress enacted 42 U.S.C. § 1988, pursuant to which a "prevailing party" in a § 1983 action is entitled to "reasonable" attorneys' fees. See Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). Under the Supreme Court's self-termed "generous formulation" of the phrase, a civil rights plaintiff is considered to be a "prevailing party" if he or she succeeds on "any significant issue in the litigation which achieves some of the benefit the parties sought in bringing suit." Farrar v. Hobby, 506 U.S. 103, 109 (1992) (citing Hensley, 461 U.S. at 429); see also Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989). The Supreme Court elaborated on the definition of prevailing party in three cases in the late 1980s, and then synthesized those rulings in Farrar v. Hobby. See Hewitt v. Helms, 482 U.S. 755, 761 (1987) (observing that "[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail" and requiring the plaintiff to prove "the settling of some dispute which affects the behavior of the defendant towards the plaintiff"); Rhodes v. Stewart, 488 U.S. 1, 3 (1988) (explained that "nothing in [Hewitt] suggested that the entry of [a declaratory] judgment in a party's favor automatically renders that party prevailing under § 1988" and reaffirming that a judgment-declaratory or otherwise-"will constitute relief, for purposes of § 1988, if, and only if, it affects the behavior of the defendant toward the plaintiff"); Texas State Teachers Assn., 489 U.S. at 792 (emphasizing ...