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Midwest Fence Corp. v. United States Department of Transportation

United States District Court, N.D. Illinois, Eastern Division

March 29, 2018



          Harry D. Leinenweber, Judge United States District Court

         Defendants Illinois Department of Transportation (“IDOT”) and Illinois State Toll Highway Authority (“Tollway”) filed Motions to recover bills of cost. (ECF Nos. 506-09, 518.) For the reasons stated herein, the Court grants in part and denies in part both Motions.

         I. BACKGROUND

         Plaintiff Midwest Fence is a specialty contractor that typically bids on guardrail and fencing construction projects as a subcontractor. Defendants administer state programs that offer advantages in highway construction contracting to Disadvantage Business Enterprises (“DBEs”). DBEs are small businesses owned and managed by individuals who are both socially and economically disadvantaged and who have historically faced discrimination in the construction industry. Midwest Fence - which does not qualify as a DBE - sued Defendants on the theory that the DBE programs violate Midwest's Fourteenth Amendment right to equal protection under the law. The Court granted summary judgment for Defendants, finding that the DBE programs serve a compelling governmental interest in remedying a history of discrimination in highway construction contracting. Midwest Fence Corp. v. United States Dep't of Transp., 84 F.Supp.3d 705, 740 (N.D. Ill. 2015), aff'd, 840 F.3d 932 (7th Cir. 2016). The Seventh Circuit affirmed.

         After the Seventh Circuit issued its ruling, the IDOT and Tollway Defendants renewed their respective Motions to recover on bills of costs. (ECF Nos. 506-09, 518.) However, Midwest Fence then petitioned the Supreme Court for certiorari, and this Court stayed the bills of costs while that petition pended. The Supreme Court has since denied certiorari, so this Court turns at last to the Defendants' respective bills of costs.


         Federal Rule of Civil Procedure 54(d)(1) provides that a prevailing party may obtain reimbursement for certain litigation costs at the conclusion of a lawsuit. The Rule establishes a “presumption that the prevailing party will recover costs, and 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)). In evaluating an application for costs, the Court must first determine whether the claimed expenses are recoverable and, second, whether the costs requested are reasonable. Majeske v. City of Chi., 218 F.3d 816, 824 (7th Cir. 2000) (citation omitted). The Court has “wide latitude” in fixing a reasonable award. Deimer v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 345 (7th Cir. 1995).

         III. ANALYSIS

         As an initial matter, Midwest Fence raises several generic fairness objections that it contends cut against the Defendants' ability to recover costs in this case. The Court dispatches those objections now before considering the specifics of Defendants' sought-after costs. First, Midwest Fence says that when the Defendants argued against certiorari at the Supreme Court, they reversed course and argued a position contrary to the one they argued at trial. From this, Midwest Fence concludes that the Supreme Court's subsequent denial of certiorari signaled that Court's approval of Defendants' newly reversed position - which, according to Midwest Fence, mirrored its own position at trial - and so Midwest should no longer be declared the loser and thus susceptible to taxation for costs. No analysis of Defendants' litigation positions (whether consistent or otherwise) is necessary here. The Supreme Court “has rigorously insisted that . . . a denial [of certiorari] carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated.” Maryland v. Baltimore Radio Show, 338 U.S. 912, 919 (1950). A denial of certiorari does not sprinkle holy water on any position argued below, and Midwest Fence is wrong to suggest otherwise.

         Next, Midwest Fence argues Defendants' discovery costs should have been far less than they were because Defendants were always required to be in compliance with the Equal Protection Clause and so, Midwest concludes, Defendants were required to have evidence of that compliance on hand before this suit ever got started. Midwest cites no authority for this position and the Court would be surprised if it could. Certainly Defendants' obligation to respect the Constitution predated Midwest's Complaint; but why Midwest thinks that obligation also obviated the need for discovery once a suit arose is an enigma.

         Most broadly, Midwest Fence complains that though it filed and lost its suit, Midwest has not been found guilty of any wrongdoing. But in our legal system, costs are presumptively awarded absent the losing party's showing that costs are not appropriate. Beamon, 411 F.3d at 864. There is no threshold question of the losing party's malfeasance. Clearly, the Court must reject all of Midwest's generic objections to the taxation of costs. Yet Midwest also levies some more specific arguments against Defendants' sought-after costs; these the Court considers in turn.

         A. Tollway Defendants' Bill of Costs

         In total, the Tollway Defendants seek costs of $33, 544.77. The Court grants in part and denies in part their bill of costs.

         1. Court ...

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