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Moultire v. Penn Aluminum, LLC

United States District Court, Seventh Circuit

January 8, 2014




I. Introduction and Background

Pending before the Court is defendant’s Bill of Costs (Doc. 204). Specifically, defendant asks for $8, 630.37 in costs which include: (1) $4, 728.40 for deposition transcripts; (2) $259.25 for a discovery dispute transcript; (3) $479.17 for internal photocopying; (4) $3, 092.45 for outside vendor photocopying; and (5) $71.10 for Illinois Department of Human Rights (“IDHR”) administrative file photocopying. Plaintiff filed timely objections to the bill of costs (Doc. 211).

In his objection (Doc. 211), plaintiff first asserts that he should be excused from paying the costs because he is indigent. He also raises specific objections addressed below. For the following reasons, the Court GRANTS in part and DENIES in part defendant’s Bill of Costs (Doc. 204). Plaintiff Levia Moultire is ORDERED to pay defendant Penn Aluminum, LLC’s costs in the amount of $4, 699.75.

II. Analysis

Rule 54(d)(1) provides that “costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs . . . .” Cefalu v. Vill. Of Elk Grove, 211 F.3d 416, 427 (7th Cir. 2000). There is a presumption in favor of the award of costs, and in order to overcome that presumption, “the losing party bears the burden of an affirmative showing that taxed costs are not appropriate.” Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir. 2005) (citing M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1409 (7th Cir. 1991)). Thus, Rule 54(d)(1) establishes “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).

A. Indigence

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 and Father v. Cassidy, 338 F.3d 704, 708 (7th Cir. 2003); see also Riveria, 469 F.3d at 634 (“[I]t is within the discretion of the district court to consider a plaintiff’s indigency in denying costs under Rule 54(d).” (internal quotations omitted)).

Rivera provides the Court with a roadmap. Id. at 635. First, it directs 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.” Id. (internal quotations omitted). Here the burden is on the losing party, the plaintiff in this case, to provide “sufficient documentation to support such a finding.” Id. (internal quotations omitted). Second, Rivera points to three factors, none of which are solely determinative: 1) the amount of the costs, 2) the good faith of the losing party, and 3) the closeness and difficulty of the issues raised by a case. Id. Importantly, also in Rivera, the Circuit notes “that the [indigence] exception is a narrow one.” Id. at 636.

According to plaintiff’s objection, plaintiff is a 68-year old retired Penn Aluminum worker. His wage prior to April 2013 was $12.57 per hour. He is currently not working and is living off of social security income. In support of this assertion, plaintiff provides his motion for permission to appeal in forma pauperis (Doc. 211-1) and its associated affidavit (Doc. 211-2). According to these submissions, plaintiff receives a little over $2, 000 in monthly income from social security, has about $450 in personal savings, and, not including his home, approximately $23, 000 in assets. Plaintiff also asserts that his wife is unable to work. He claims that “[h]e does not have assets sufficient to cover the requested costs and does not anticipate income sufficient to cover the costs in the future” (Doc. 211 at 3). Plaintiff additionally provides the transcript of a discovery dispute conference before Magistrate Judge Philip M. Frazier (Doc. 211-3) in an effort to demonstrate the “closeness and difficulty of the issues” in the case (Doc. 211 at 4).

While plaintiff indicates that he supports his wife, who is unable to work, he has disclosed an incoming cash flow of more than $2, 000.00 each month and substantial assets. Also, although it appears his expenses might outweigh his income, the information he has provided the Court is insufficient and differing on that front (See Docs. 211-1, 211-2). Plaintiff also does not address his future ability to pay, but merely states that he is retired. Therefore, the Court does not find the plaintiff’s case to meet the requirements as they were contemplated by the Seventh Circuit in Rivera. See Rivera, 469 F.3d at 636.

B. Specific Objections

Although the prevailing party is presumptively entitled to costs, not all of the costs of litigation are recoverable. “[A] district court may not tax costs under Rule 54(d) unless a federal statute authorizes an award of those costs.” Republic Tobacco Co. v. N. Atl. Trading Co., 481 F.3d 442, 447 (7th Cir. 2007). The following costs are allowed pursuant to 28 U.S.C. § 1920: (1) fees of the clerk and marshal; (2) fees for transcripts, (3) witness and printing fees and expenses, (4) fees for copies or papers necessarily obtained for use in the case, (5) docket fees, and (6) compensation for court-appointed experts and interpreters. 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). Further, 28 U.S.C. ยง 1924 requires that the party filing the bill of costs ...

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