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National Organization for Women, Inc. v. Scheidler

United States Court of Appeals, Seventh Circuit

April 29, 2014

NATIONAL ORGANIZATION FOR WOMEN, INC., et al., Plaintiffs-Appellants,
v.
JOSEPH M. SCHEIDLER, et al., Defendants-Appellees

Argued, April 18, 2014

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 C 7888 -- Charles R. Norgle, Judge.

For Summit Women's Health Organization, Incorporated, Delaware Women's Health Organization, Incorporated, Plaintiffs - Appellants: Laura Kleinman, Robinson, Curley & Clayton, P.C., Chicago, IL.

For NATIONAL ORGANIZATION FOR WOMEN, INCORPORATED, on behalf of itself and its women members and other women who use or may use the services of women's health centers that provide abortions, Plaintiff - Appellant: Laura Kleinman, Robinson, Curley & Clayton, P.C., Chicago, IL.

For Joseph M. Scheidler, Pro-Life Action League, Incorporated, Andrew D. Scholberg, Timothy Murphy, Defendants - Appellees: Jason R. Craddock Sr., Chicago, IL; Ariel Lavinbuk, Mark T. Stancil, Robbins, Russell, Englert, Orseck & Untereiner, Washington, DC.

Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

OPINION

Page 697

Easterbrook, Circuit Judge

This suit began 28 years ago and has been to the Supreme Court three times. National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994); Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003); Scheidler v. National Organization for Women, Inc., 547 U.S. 9, 126 S.Ct. 1264, 164 L.Ed.2d 10 (2006). All defendants who stuck it out to the end (some settled) prevailed across the board. They applied for costs under 28 U.S.C. § 1920 and were awarded most of what they sought--but not until District Judge Coar held the request under advisement for three years and then retired, after which the case was transferred to District Judge Norgle. He awarded a total $63,391.45, modest for a suit that entailed discovery, a long trial, many motions in the district court, and appellate proceedings that span a generation. The costs amount to less than $2,300 per year of litigation.

Plaintiffs dispute some of the district judge's decisions about particular items, but we do not perceive either a clear error of fact or an abuse of discretion and have no more to say about those matters. Plaintiffs also offer three reasons why defendants should get nothing: (1) they took too long to request costs; (2) they did not establish that the transcripts and copies were " necessarily obtained for use in the case" as § 1920 requires; and (3) they did

Page 698

not nudge Judge Coar to rule before he retired. We consider these in turn.

1. Final judgment was entered on May 14, 2007. Defendants filed a timely motion under Fed.R.Civ.P. 59 to amend the judgment; they also asked for more time to file a bill of costs, telling the judge that the length and complexity of the case, and the need to coordinate among the many defendants, justified additional time. Judge Coar did not act on that motion. Defendants then filed a bill of costs on July 14--one day late, unless the Rule 59 motion itself extended the time. Instead of deciding what effect the Rule 59 motion had, Judge Coar entered an order on July 19 accepting the belated filing. N.D.Ill. Local Rule 54.3 requires parties seeking costs to follow up by conferring with other litigants to see what disputes can be resolved without judicial action. Defendants asked for extensions; the last of these ran through October 1, and defendants filed the Local Rule 54.3 statement that day.

Judge Norgle concluded that these events entitle defendants to a ruling. A district judge may accept untimely filings--Fed. R. Civ. P. 54(d), which governs costs, is not among the few that create non-extendable time limits--and appellate review is deferential. See, e.g.,Pioneer Investment Services Co. v. Brunswick Associates L.P., 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Not that an extension was necessary. A timely motion under Rule 59 suspends the judgment's finality, see Fed. R. App. P. 4(a)(4), which means that the time to file the bill of costs did not begin to run until the district judge resolved the Rule 59 motion. Judge Coar did not do that until August 22, 2007, when he ...


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