Palmer v. Monroe et al
Filing
100
ORDER granting 90 Defendant Hemphill's Motion for Reconsideration or, Alternatively, Motion to Certify Under Rule 54(b), Fed. R. Civ. P. The Court vacates its March 10, 2011 Order 67 and grants Defendant Hemphill's Motion for Costs [5 8] ; denying as moot 90 Defendant's Motion to Certify Appeal; granting 99 Defendant Bracy's Motion to Tax Costs. Plaintiff is hereby taxed costs totaling $43.45 ($16.20 for Defendant Hemphill and $27.25 for Defendant Bracy). Plaintiff shall make payments for these costs to Defendants pursuant to 28 U.S.C. section 1915(f)(2)(B). The Clerk is directed to enter judgment accordingly. Signed by Judge Charlene E. Honeywell on 10/5/2011. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LESAMUEL PALMER,
Plaintiff,
vs.
Case No.
2:10-cv-98-FtM-36SPC
J. BRACY,
Defendant.
_______________________________
ORDER
This matter comes before the Court upon review of “Defendant
Hemphill’s Motion for Reconsideration or, Alternatively, Motion to
Certify Under Rule 54(b), Fed. R. Civ. P.” (Doc. #90, Motion for
Reconsideration), filed August 8, 2011; and, Defendant Bracy’s Motion
to Tax Costs (Doc. #99, Motion for Costs), filed September 12, 2011.
Plaintiff has not filed a response to either motion and the time to do
so has expired.
These matters are ripe for review.
Motion for Reconsideration
The
Court
first
addresses
Defendant
Hemphill’s
Motion
for
Reconsideration of the Court’s March 10, 2011 Order (Doc. #67,
hereinafter “Order”), denying Defendant Hemphill’s motion to tax
costs.
Defendant Hemphill does not state under which rule he files
his Motion for Reconsideration.
The Court presumes the motion is
filed under Fed. R. Civ. P. 60(b).1
1
The purpose of Fed. R. Civ. P.
Rule 60(c) requires that a Motion for Reconsideration be filed
“within a reasonable time,” and no more than a year after the entry
of judgment or order. Defendant meets this requirement.
60(b) is to define the circumstances under which a party may obtain
relief from a final judgment or order.
“It should be construed in
order to do substantial justice, but this does not mean that final
judgments should be lightly reopened.”
Griffin v. Swim-Tech Corp.,
722 F.2d 677, 680 (11th Cir. 1984) (citations omitted) (stating “[t]he
desirability for order and predictability in the judicial process
speaks for caution in the reopening of judgments.”).
Rule 60(b)
permits courts to reopen judgments, or provide relief from an order,
for reasons of mistake, inadvertence, surprise, excusable neglect, or
any other reason that justifies relief. See Rule 60(b)(1), 60(b)(6).
“Motions under this rule are directed to the sound discretion of the
district court.”
Id.; United States v. Certain Real Prop. Located at
Route 1, Bryant, Ala., 126 F.3d 1314, 1318 (11th Cir. 1997).
Defendant Hemphill submits that the Court should reconsider its
Order because Fed. R. Civ. P. 54(d) creates a presumption in favor of
awarding costs to the prevailing party and Plaintiff did not overcome
that presumption.
Motion for Reconsideration at 2, 5 (citing Chapman
v. AI Transp., 229 F.3d 1012, 1038 (11th Cir. 2000)(en banc)).
Defendant Hemphill further contends that, as the prevailing party, the
Court should have granted his request for printing costs totaling
$16.20. Motion for Reconsideration at 1. Defendant Hemphill believes
that the Court mistakenly applied the standard associated with 42
U.S.C. § 1988, instead of the standards set forth in Rule 54(d)(1) and
§ 1920.
Id.
Defendant Hemphill acknowledges that case law permits
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the court to consider a party’s financial resources when making a
costs determination, but submits that in those cases where a court
considers a party’s financial resources, the party must produce
“substantial documentation” of a true inability to pay.
(quoting Chapman, 229 F.3d at 1039).
Id. at 5
Defendant Hemphill correctly
points out that Plaintiff did not file a response to the motion for
costs, much less provide documentation of his inability to pay.
at 5.
Id.
Moreover, Defendant avers that even in those rare cases when
a court considers a party’s financial resources, a court may not
decline to award any costs at all.
Id. at 4 (quoting Chapman, 229
F.3d at 1039).
Defendant Hemphill’s arguments are well taken, with the exception
that, contrary to the Defendant’s position, the Court expressly stated
in its Order that it was not applying the standard associated with the
imposition of attorneys’ fees under 42 U.S.C. § 1988(b).
2, fn. 1.
See Order at
Also, to the extent that Defendant Hemphill suggests that
the district court must award costs to the prevailing party, the
Eleventh Circuit Court of Appeals has specifically rejected the idea
that “costs must be assessed” against the non-prevailing party.
Harris v. Forsyth, 742 F.2d 1277, 1278 (11th Cir. 1984)(emphasis in
original).
As initially noted by the Court in its Order, Fed. R. Civ. P.
54(b)
addresses
awards
of
costs
for
a
prevailing
party.
The
prevailing party may be awarded those costs enumerated in 28 U.S.C. §
-3-
1920.
See Order at 2 (citing Newman v. Housing Authority of the City
of Ft. Lauderdale, Case No. 06-60359, 2007 WL 315098 *1 (S.D. Fla.
2007)); but see Campbell v. Rainbow City, 209 F. App’x 873, 876 (11th
Cir. 2006)(recognizing that § 1920 is permissive, not restrictive, and
does not exhaust the class of costs that may be taxed in the district
courts). Indeed, as previously stated, “[t]he Court has discretion to
award costs against indigents ‘as in other cases.’”
Harris, 742 F.2d
at 1278 (citing 28 U.S.C. § 1915(e))(addressing imposition of costs on
an appellant proceeding in forma pauperis); see also ANG v. Coastal
Int’l Security, Inc., 417 F. App’x 836 (11th Cir. 2011)(recognizing
that the district court may award costs against indigent plaintiffs).
In its Order, the Court considered, as one factor, Plaintiff’s
financial status.
Chapman, 229 F.32d at 1040.
The Court, however,
acknowledges that Plaintiff never filed a response to Defendant
Hemphill’s motion for costs and never provided any documentation of
his inability to pay, other than his initial motion for leave to
proceed in forma pauperis.2
Id. at 1039 (stating court should require
“substantial documentation” of a true inability to pay).
Moreover,
the Eleventh Circuit Court of Appeals has recognized that “[e]ven in
those rare circumstances where the non-prevailing party’s financial
circumstances are considered in determining the amount of costs to be
awarded, a court may not decline to award any costs at all.”
2
Id.
The
Plaintiff also has failed to file a response to Defendant
Hemphill’s Motion for Reconsideration. See docket.
-4-
Court acknowledges that it declined to award any costs at all to
Defendant Hemphill and the standard applied by the Court would make it
impossible for a prevailing party to obtain costs in any prisoner
case, where the prisoner was proceeding in forma pauperis, which
reached
the
summary
judgment
stage.
Further,
the
Court
now
recognizes:
when costs are assessed only in extreme or exceptional
cases, those persons granted leave to proceed in forma
pauperis have virtually “nothing to lose and everything to
gain,” [] and the purpose of § 1915– equal access for the
poor and rich– is distorted. Non-indigents who contemplate
litigation are routinely forced to decide whether their
claim is “worth it.” We see no reason to treat indigents
differently in this respect.
Harris, 742 F.2d at 1278 (quoting Flint v. Haynes, 651 F.2d 970, 973
(4th Cir. 1981)).
At this point in time, the Court also has the
benefit that the case is at its conclusion.3
Consequently, for these reasons, the Court grants Defendant
Hemphill’s Motion for Reconsideration and vacates its March 10, 2011
Order.
Pursuant to Rule 54(d)(1) and 28 U.S.C. § 1920, Defendant
Hemphill’s Motion to Tax Costs is granted and Plaintiff is taxed costs
in the amount of $16.20.
3
The Court recognizes that “section 1915 contemplates the
postponement of fees and costs for litigants who are granted in
forma pauperis status.” Harris, 742 F.2d at 1278 (emphasis added);
28 U.S.C. section 1915(f)(stating “[j]udgment may be rendered for
costs at the conclusion of the suit.”)
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Defendant Bracy’s Motion For Costs
Defendant Bracy files a Motion for Costs pursuant to Fed. R. Civ.
P. 54(d)(1) and files an attached bill of costs.
1; see also Exh. A.
Motion for Costs at
Defendant Bracy, as the prevailing party,
requests reimbursement of his copying expenses totaling $27.75.
Plaintiff has not filed a response in opposition to the Motion.
Id.
See
docket.
Pursuant to Rule 54 and 28 U.S.C. § 1920, as set forth supra, the
Court grants Defendant Bracy’s Motion for Costs.
Defendant Bracy’s
Motion for Summary Judgment was granted on September 9, 2011, and he
is the prevailing party.
See Doc. #97.
The copies Defendant Bracy
seeks reimbursement for were necessarily obtained in the case. See 28
U.S.C. § 1920.
Therefore, Plaintiff is taxed costs totaling $27.25.
ACCORDINGLY, it is hereby
ORDERED AND ADJUDGED:
1.
“Defendant
Hemphill’s
Motion
for
Reconsideration
or,
Alternatively, Motion to Certify Under Rule 54(b), Fed. R. Civ. P.”
(Doc. #90) is GRANTED.
The Court vacates its March 10, 2011 Order
(Doc. #67) and grants Defendant Hemphill’s Motion for Costs (Doc.
#58).
Defendant’s Motion to Certify Appeal (Doc. #90) is DENIED as
moot.
2.
Defendant Bracy’s Motion to Tax Costs (Doc. #99) is GRANTED.
3.
Plaintiff is hereby taxed costs totaling $43.45 ($16.20 for
Defendant Hemphill and $27.25 for Defendant Bracy).
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4.
Plaintiff shall make payments for these costs to Defendants
pursuant to 28 U.S.C. § 1915(f)(2)(B).
5.
The Clerk of Court shall enter judgment accordingly.
DONE AND ORDERED at Fort Myers, Florida, on this 5th day of
October, 2011.
SA: alj
Copies: All Parties of Record
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