Belcher et al v. The Grand Reserve MGM, LLC et al

Filing 151

MEMORANDUM OPINION AND ORDER: the Court denies Plaintiffs' 143 MOTION to Alter, Amend, or Vacate, as further set out in order; the Court grants in part and denies in part Defendants' 147 MOTION to Tax Costs to Plaintiff; The Court d enies the motion with respect to $50.00 of fees for condensed transcripts, but the Court grants the motion in all other respects; The Court hereby awards Defendants costs in the amount of $4,600.76. Signed by Honorable Judge Keith Starrett on 2/6/2019. (kr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
KIMBERLY BELCHER, et al.
v.

PLAINTIFFS
CIVIL ACTION NO. 2:15-CV-834-KS-WC

THE GRAND RESERVE MGM, LLC, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
For the reasons below, the Court denies Plaintiffs’ Motion to Alter, Amend, or
Vacate [143] the Court’s prior opinion and judgment. The Court also grants in part
and denies in part Defendant’s Motion to Tax Costs to Plaintiff [147].
A.

Motion to Alter, Amend, or Vacate [143]
Plaintiffs argue that the Court should alter, amend, or vacate its previous

opinion pursuant to Rule 59. “Rule 59(e) allows courts to alter judgments only where
there is ‘newly-discovered evidence or manifest errors of law or fact.’” EEOC v. St.
Joseph’s Hosp., Inc., 842 F.3d 1333, 1349 (11th Cir. 2016). Generally, Rule 59 “may
not be used to raise new legal theories or arguments . . . .” Id. at 1337. Likewise, a
“Rule 59(e) motion cannot be used to relitigate old matters, raise argument or present
evidence that could have been raised prior to the entry of judgment.” Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007) (quoting Michael Linet, Inc. v. Village of
Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)).
1.

Consideration of Brittany Allen’s Motive
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First, Plaintiffs contend that the Court improperly considered Defendants’
intentions in promulgating the disputed rules. Plaintiffs argue that Defendants’
intentions are irrelevant in a facial discrimination analysis, and that the Court erred
by considering Brittany Allen’s intentions.
The Court did not rule that the disputed rules were not discriminatory. The
basis of the Court’s ruling on Plaintiffs’ familial status discrimination claims under
the Fair Housing Act (“FHA”) and Alabama Fair Housing Law was that Defendant’s
actions were justified responses to legitimate safety concerns raised by residents of
the apartment complex. To the extent Allen promulgated the disputed rules in
response to legitimate safety concerns raised by residents of the apartment complex,
her intent is indeed relevant. The Court’s discussion of Ms. Allen’s intent was not to
mitigate the facially discriminatory nature of the rules. Rather, assuming that the
rules were facially discriminatory on the basis of familial status, they were justified
responses to legitimate safety concerns raised by residents of the apartment complex.
2.

Enforcement of the Rules

Next, Plaintiffs argue that the Court erred by ruling that Defendants did not
discriminate on the basis of familial status because the disputed rules were never
enforced. But the Court did not rule on this basis. The Court assumed that the rules
were facially discriminatory on the basis of familial status and held that they were
justified responses to legitimate safety concerns raised by residents of the apartment
complex. Regardless, the record contained evidence to support a finding that the rules
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were never enforced.
3.

Evidence of Retaliation

Plaintiffs argue that the Court erred in finding that there was no credible
evidence that Defendants subjected them to adverse action because of protected
activity. First, Plaintiffs argue that Defendants’ notice of the disputed rules
constituted a threat or intimidation within the meaning of the FHA because it
provided that the apartment complex would issue fines upon a second violation of the
rules.
The Eleventh Circuit has held that actually assessing fines did not constitute
coercion, intimidation, or threats in violation of the FHA. See Wood v. Briarwinds
Condominium Ass’n Bd. of Directors, 369 F. App’x 1, 3 (11th Cir. 2010). Therefore, it
stands to reason that warning of potential fines upon violation of posted rules does
not constitute retaliation under the FHA.
Regardless, “[t]o establish a prima facie case of retaliation, a plaintiff must
show that (1) he engaged in a protected activity; (2) the defendant subjected him to
an adverse action; and (3) a causal link exists between the protected activity and the
adverse action.” Phillipeaux v. Apt. Inv. & Mgmt. Co., 598 F. App’x 640, 644 (11th
Cir. 2015). Therefore, even if the notice constituted a threat or intimidation under
the FHA, Plaintiffs were required to present evidence that Defendants posted it
because of their protected activity. In the Court’s opinion, Plaintiffs did not present
credible evidence demonstrating a causal link between the rule notice and any
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protected activity. In fact, Plaintiffs did not articulate in briefing what “protected
activity” the rules were posted in retaliation against.
Next, Plaintiffs argue that Plaintiff Dedric Belcher provided credible testimony
regarding retaliatory conduct by Defendants and/or their agents. First, the Court
explained at length in its previous opinion that it does not find Plaintiffs’ testimony
to be credible, for a variety of reasons. Regardless, Dedric Belcher’s testimony
highlighted by Plaintiffs in briefing does not demonstrate that a causative
relationship exists between the alleged adverse action and Plaintiffs’ protected
activity. In other words, Mr. Belcher’s testimony does not demonstrate a retaliatory
motive.
4.

Legitimate Safety Concerns

Next, Plaintiffs contend that the Court erred by failing to make an
individualized inquiry of the legitimacy or reasonableness of the rules as responses
to safety concerns, and by failing to inquire as to whether the disputed rules were the
least restrictive means of accomplishing the articulated safety goals. Plaintiffs also
suggest that the Court prevented them from presenting proof of pretext.
Plaintiffs were free to present whatever evidence they wished, subject to the
Rules of Evidence. Plaintiffs’ suggestion that the Court prevented them from
presenting proof that Defendants’ stated reasons for the rules were pretextual is
false. Indeed, Plaintiffs knew that Defendants intended to argue that the rules were
justified by legitimate safety concerns, as Defendant raised the issue in dispositive
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motions.
As for the legitimacy of Defendants’ reasons, it is not the Court’s job to rebut
Defendants’ evidence. That task falls to the Plaintiffs. If Plaintiffs believed that
Defendants’ stated reasons for the rules were pretextual, then it was Plaintiffs’
responsibility to offer credible evidence at trial to that effect and argue the point in
post-trial briefing. The Court based its decision on the record evidence and exercised
its discretion as the fact-finder in assessing the credibility and weight that should be
given to the evidence. The Court’s opinion listed specific undisputed examples of
criminal and/or destructive behavior by minors on the Grand Reserve property.
Moreover, Plaintiffs first raised the issues of “least restrictive means” and
“individualized inquiries” in the present motion. “Rule 59(e) motions cannot be used
to . . . raise argument or present evidence that could have been raised prior to the
entry of judgment.” Arthur, 500 F.3d at 1343.
5.

Findings of Fact

Finally, Plaintiffs contend that some of the Court’s findings of fact were clearly
erroneous and against the great weight of the evidence. Plaintiffs did not connect
these factual issues to any particular claim or argue that different factual findings on
these points would have made a difference in the outcome. Plaintiffs apparently take
issue with the Court’s assessment of their credibility. But in a bench trial, the Court
functions as the fact finder, and has a responsibility to assess the credibility of
witnesses and the weight given to evidence. See, e.g. United States v. Ramirez-Chilel,
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289 F.3d 744, 749 (11th Cir. 2002); Direct Niche, LLC v. Via Varejo S/A, 898 F.3d
1144, 1149 (11th Cir. 2018). The Court is not persuaded that its factual findings were
clearly erroneous or against the great weight of the evidence.
For all these reasons, the Court denies Plaintiffs’ Motion to Alter, Amend, or
Vacate [143].
B.

Motion to Tax Costs
On November 6, 2018, Defendants filed a Bill of Costs [146] and a Motion to

Tax Costs [147] seeking an award of $4,650.76 in costs. Plaintiffs objected [149] to
the Bill of Costs in its entirety.
Rule 54 generally provides that “costs – other than attorney’s fees – should be
allowed to the prevailing party.” FED. R. CIV. P. 54(d)(1). The Court’s discretion under
the Rule 54 is limited by statute. 28 U.S.C. § 1920. Section 1920 enumerates specific
categories of expenses that the Court may tax as costs. 28 U.S.C. § 1920. “Rule 54(d)
gives rise to a presumption that costs will be awarded, and the party opposing the
award must overcome this presumption.” Nationwide Mut. Ins. Co. v. Nall’s Newton
Tire, 2015 WL 8207478, at *5 (S.D. Ala. Dec. 7, 2015) (citing Manor Healthcare Corp.
v. Lomelo, 929 F.2d 633, 639 (11th Cir. 1991)).
1.

Timeliness

First, Plaintiffs argue that Defendants’ Bill of Costs is untimely under the
Court’s Local Rules. Local Rule 54.1 provides that “[r]equests for taxation of costs . .
. shall be filed with the Clerk within 35 days after entry of final judgment from which
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an appeal may be taken.” M.D. Ala. L.R. 54.1(a). The Court entered a Final Judgment
[142] on October 2, 2018. Defendants filed their Bill of Costs [146] on November 6,
2018 – exactly thirty-five days after entry of the Court’s Final Judgment. Therefore,
the Bill of Costs was not untimely.
2.

Printing Costs

Next, Plaintiffs object to Defendants’ submission of printing costs incurred on
April 6-7, 2017, in the amount of $296.91. Plaintiffs contend that it is unclear what
the documents were and how they were used in the case. In response, Defendants
represented that the invoices were for printing expenses incurred in preparation of
trial exhibits.
Section 1920 specifically allows taxation of costs incurred for “making copies of
any materials where the copies are necessarily obtained for use in the case . . . .” 28
U.S.C. § 1920(4). “In evaluating copy costs, a district court should consider whether
the prevailing party would have reasonably believed that it was necessary to copy the
documents at issue. Actual use of the information contained in the document copied
is not a prerequisite to finding that it was necessary to copy the document.” Watson
v. Lake County, 492 F. App’x 991, 997 (11th Cir. 2012).
The Court’s Scheduling Order [20] of December 30, 2015, ordered the parties
to file exhibit lists and furnish opposing counsel all exhibits and tangible evidence to
be used at trial on or before April 21, 2017. Therefore, these printing costs were
necessarily obtained for use in the case in that Defendants were complying with the
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Court’s order. The Court overrules Plaintiffs’ objection to this item.
3.

Transcripts of PI Hearing and Trial

Next, Plaintiffs object to taxation of the costs of transcripts of the preliminary
injunction hearing and trial. Plaintiffs contend that these transcripts were not
necessary but were purchased solely for the convenience of counsel.
This Court has previously allowed taxation of costs for a transcript of a
preliminary injunction hearing. Pearson v. Colonial Fin. Serv., Inc., 530 F. Supp. 599,
602 (M.D. Ala. 1982). Moreover, Defendants used these transcripts at trial to impeach
the testimony of Plaintiff Kimberly Belcher on cross-examination. Defendants also
used the transcripts during direct examination of Savannah Cox. Accordingly, the
Court finds that purchasing the transcript of the preliminary injunction hearing was
reasonably necessary for use in the case.
As for the trial transcript, this Court has previously held that the “cost of trial
transcripts may be taxed against a losing party when such transcripts are necessary
for use in the case.” Snow v. Boston Mut. Life Ins. Co., 2014 WL 641879, at *3 (M.D.
Ala. Feb. 19, 2014) (citing 28 U.S.C. § 1920(2)). Obtaining a trial transcript is
reasonably necessary when a party must respond to a post-trial motion under Rule
59(e). Id. (citing Denton v. DaimlerChrysler Corp., 645 F. Supp. 2d 1215, 1228 (N.D.
Ga. 2009). Additionally, this was a bench trial, and the Court required the parties to
file post-trial briefs, and both sides extensively cited the transcripts in their briefing.
Accordingly, the Court finds that the trial transcripts were necessarily obtained for
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use in the case and overrules Plaintiffs’ objection.
4.

Deposition Transcripts

Next, Plaintiffs object to the taxation of costs of the Plaintiffs’ depositions.
Plaintiffs contend that the transcripts were obtained for the convenience of counsel.
Plaintiffs also argue that the bill includes non-allowable costs for appearance fees
and a condensed transcript.
“In determining whether the costs of recording a deposition may be taxed
under § 1920, a district court must decide the factual question of whether the
deposition was necessarily obtained for use in a case.” Watson, 492 F. App’x at 996.
“Where the deposition costs were incurred for the prevailing parties’ convenience,
such as to aid in thorough preparation or for the purposes of investigation only, the
costs are not recoverable.” Id. “[U]se of a deposition at trial or in a summary judgment
motion tends to show that the deposition was necessarily obtained for use in a case,”
but “such a showing is not necessary to be taxable.” Id.
Here, Defendants used the deposition transcripts at trial to impeach Plaintiffs’
testimony. Therefore, they were necessarily obtained for use in the case, and not
merely for the convenience of counsel.
As for the appearance fees, “Courts vary on whether to tax these costs.” Jones
v. Novartis Pharms. Corp., 2018 WL 3585225, at *3 (N.D. Ala. July 26, 2018). The
Northern District of Alabama has declined to tax deposition appearance fees, id.,
while the Southern District of Alabama has taxed such fees. Crouch v. Teledyne Cont’l
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Motors, Inc., 2013 WL 203408, *10 (S.D. Ala. Jan. 17, 2013). This Court has permitted
taxation of deposition appearance fees along with mileage and transcription fees. See,
e.g. Moncus v. Johanns, 2006 WL 1180950 (M.D. Ala. May 2, 2006). Neither party
has provided the Court with any definitive precedent on this issue. Therefore, as the
deposition transcripts were necessarily obtained for use in the case, the Court will
likewise permit the deposition appearance fees, in keeping with previous decisions of
the Middle District of Alabama.
Most courts have concluded that additional costs for condensed transcripts are
“for the convenience of . . . attorneys and are not taxable under § 1920.” Adams v. City
of Montgomery, 2014 WL 3053343, at *9 (M.D. Ala. July 7, 2014). Therefore, the Court
sustains Plaintiffs’ objection as to the $50.00 of fees charged for condensed
transcripts.
5.

Financial Inability

Plaintiffs argue that the Court should decline to award costs because they are
unable to pay them and because there is a great disparity in the parties’ relative
wealth.
“[A] district court may, but need not, consider financial status in making a
costs award to a prevailing party.” Ellis v. C. R. Bard, Inc., 311 F.3d 1272, 1288 (11th
Cir. 2002). “If a district court in determining the amount of costs to award chooses to
consider the non-prevailing party’s financial status, it should require substantial
documentation of a true inability to pay.” Chapman v. AI Transport, 229 F.3d 1012,
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1039 (11th Cir. 2000). But the Court should not conduct a “comparison of the parties’
financial strengths. To do so would not only undermine the presumption that Rule
54(d)(1) creates in prevailing parties’ favor, but it would also undermine the
foundation of the legal system that justice is administered to all equally, regardless
of wealth or status.” Cherry v. Champion Int’l Corp., 186 F.3d 442, 448 (11th Cir.
1999); see also Chapman, 229 F.3d at 1039.
The disparity in the parties’ financial resources is irrelevant, and the Court is
not permitted to consider it when taxing costs. Additionally, Plaintiffs provided
insufficient documentation regarding their alleged inability to pay. For the reasons
previously provided, the Court does not find Plaintiffs’ trial testimony credible. Even
if it were credible, it is not sufficient to overcome the presumption created by Rule
54(d)(1). The Court also notes that the amount of costs is not excessive.
6.

Nature of the Plaintiffs’ Claims

Finally, Plaintiffs argue that taxing costs would have a chilling effect on
actions to enforce statutory rights under the FHA. “The language of Rule 54(d)(1)
does not provide that the presumptive award of costs may be defeated because of the
nature of the underlying litigation. On the contrary, it provides that ‘except when
express provision therefor is made either in a statute of the United States or in these
rules,’ the cost-shifting to the prevailing party otherwise applies to all cases,
including” those involving civil rights. Cherry, 186 F.3d at 448. Therefore, any “public
interest exception” to Rule 54(d)(1) “must be contained explicitly in a statute or rule
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. . . .” Id.
The FHA specifically provides that “the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney’s fee and costs.” 42 U.S.C. § 3613(c)(2).
Additionally, it permits awards of actual and punitive damages to prevailing
plaintiffs. 42 U.S.C. § 3613(c)(1). Therefore, the FHA “already contains incentives to
serve the public interest as identified by Congress,” Cherry, 186 F.3d at 448, and it
contains no public interest exception to the general rule that the prevailing party is
entitled to an award of costs.
For these reasons, the Court grants in part and denies in part Defendants’
Motion to Tax Costs to Plaintiffs [147]. The Court denies the motion with respect to
$50.00 of fees for condensed transcripts, but the Court grants the motion in all other
respects. The Court hereby awards Defendants costs in the amount of $4,600.76. 1
SO ORDERED AND ADJUDGED this 6th day of February, 2019.
/s/ Keith Starrett
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

1

$4,650.76 – $50.00 = $4,600.76

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