MULLINAX v. MCKEITHEN et al

Filing 155

ORDER granting 153 Motion to Strike; striking 150 Motion for Bill of Costs. Signed by JUDGE RICHARD SMOAK on 3/11/2015. (jcw)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
RICHARD LEE MULLINAX,
Plaintiff,
v.

CASE NO. 5:12-cv-341-RS-CJK

FRANK MCKEITHEN, et al.,
Defendants.
_________________________________/
ORDER
Before me are Defendant’s Motion to Strike Plaintiff’s Bill of Costs (Doc.
153) and Plaintiff’s Memorandum in Opposition (Doc. 154).
Plaintiff Richard Mullinax obtained a zero-damages verdict on some of his
civil rights claims against Defendants Sheriff Frank McKeithen and Officer
Douglas Smith. Mullinax filed a bill of costs, and Defendants have moved to strike
the bill of costs on the grounds that Mullinax was not a prevailing party because he
did not obtain any damages. After review, I find that Mullinax was not the
prevailing party, and Defendants’ motion is granted.
I.

BACKGROUND

Plaintiff Richard Mullinax sued the police for violations of his civil rights
when he was falsely placed under arrest for a few hours in 2011. Mullinax brought
his then-remaining claims to trial on January 27-28, 2015. He claimed § 1983
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violations by Defendant Officer Douglas Smith and by Defendant Bay County
Sheriff Frank McKeithen in his individual and official capacities, as well a state
law false arrest claim against McKeithen in his official capacity.
The jury rendered a verdict for McKeithen on the false arrest claim and the
individual capacity § 1983 claim, but found that Smith and McKeithen (in his
official capacity) had violated Mullinax’s constitutional rights. (Docs. 143, 145,
147). However, the jury awarded Mullinax zero damages—not even nominal
damages. (Id.). The clerk entered judgment in favor of Mullinax as against Smith
and McKeithen in his individual capacity on the civil rights claim, and in favor of
McKeithen on the remaining claims. (Doc. 149).
After trial, Mullinax filed a bill of costs. (Doc. 150). Defendants now move
to strike the bill of costs on the grounds that Mullinax was not the prevailing party
and therefore not entitled to costs.
II.

ANALYSIS

Fed. R. Civ. P. 54(d)(1) provides that “costs—other than attorney’s fees—
should be allowed to the prevailing party.” Here, the jury found for Mullinax on
the issue of liability, but awarded zero damages. The question arises whether he is
“prevailing party” under Rule 54(d).
Usually, the litigant in whose favor judgment is rendered is the prevailing
party under Rule 54(d); a party who has obtained some relief usually will be

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regarded as the prevailing party even though he has not sustained all his claims.
Head v. Medford, 62 F.3d 351, 354 (11th Cir. 1995) (citations and quotations
omitted). An award of nominal damages is sufficient to award costs under Rule
54(d). See Lipscher v. LRP Publications, Inc., 266 F.3d 1305, 1321 (11th Cir.
2001). However, the parties do not cite, and this Court does not find, any binding
authority on whether a party who obtains judgment but zero damages is considered
a prevailing party under Rule 54(d).
a.

“Prevailing Party” under Rule 54(d) Versus Fee-Shifting Statutes
The premise of Mullinax’s argument is that there is a distinction between

what constitutes a “prevailing party” for the purposes of Rule 54(d) and the
purposes of fee-shifting statutes such as 42 U.S.C. § 1988. However, this is a false
distinction.
It is true that the party must “prevail” to a greater extent to receive fees
under § 1988 than under Rule 54(d). See Farrar v. Hobby, 506 U.S. 103, 114, 113
S. Ct. 566, 574, 121 L. Ed. 2d 494 (1992) (holding that some factors that do not
affect the prevailing party inquiry may still affect the propriety of fees under
§ 1988); Gray ex rel. Alexander v. Bostic, 720 F.3d 887, 894 (11th Cir. 2013). This
rule is grounded in the differing language of the statutes and the corresponding
legislative histories, as the language of Rule 54(d) provides less discretion to courts
to award fees than § 1988. Compare 42 U.S.C. § 1988 (“[T]he court, in its
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discretion, may allow the prevailing party . . . a reasonable attorney’s fee.”)
(emphasis added), with Fed R. Civ. P. 54(d)(1) (“costs—other than attorney’s
fees—should be allowed to the prevailing party.”) (emphasis added). See also
Head, 62 F.3d at 354 (“[A]lthough the district court has discretion to deny a
prevailing party costs [under Rule 54(d)], such discretion is not unfettered.”).
However, there appears to be no evidence that the term “prevailing party”
has any different meaning in the two contexts. Rather, “prevailing party” is a “legal
term of art.” Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health &
Human Res., 532 U.S. 598, 603, 121 S. Ct. 1835, 1839, 149 L. Ed. 2d 855 (2001).
The term is defined in Black’s Law Dictionary as “[a] party in whose favor a
judgment is rendered, regardless of the amount of damages awarded,” and has been
interpreted to mean a party “who has been awarded some relief by the court.” Id.
The Supreme Court has hinted that “prevailing party” means one thing
across all contexts. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933,
1939, 76 L. Ed. 2d 40 (1983) at n. 7 (“The standards set forth in this opinion are
generally applicable in all cases in which Congress has authorized an award of fees
to a ‘prevailing party.’); Farrar v. Hobby, 506 U.S. 103, 119–20, 113 S.Ct. 566,
121 L.Ed.2d 494 (1992) (O'Connor, J., concurring). Furthermore, other circuits
have held that there is little or no distinction in the meaning of “prevailing party”
between § 1988 and Rule 54(d). See, e.g., Dattner v. Conagra Foods, Inc., 458
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F.3d 98, 101 (2d Cir. 2006); Institutionalized Juveniles v. Sec’y of Pub. Welfare,
758 F.2d 897, 926 (3d Cir. 1985); Studiengesellschaft Kohle mbH v. Eastman
Kodak Co., 713 F.2d 128, 132 (5th Cir. 1983); Andretti v. Borla Performance
Indus., Inc., 426 F.3d 824, 835-36 (6th Cir. 2005) (implicit finding); Miles v.
California, 320 F.3d 986, 989 (9th Cir.2003) (implicit finding); Tunison v.
Continental Airlines Corp., Inc., 162 F.3d 1187, 1189–90 (D.C.Cir.1998);
Manildra Milling Corp. v. Ogilvie Mills, Inc., 76 F.3d 1178, 1180 n. 1
(Fed.Cir.1996). Other district courts in this circuit have reached the same outcome.
See, e.g, Fulton Fed. Sav. & Loan Ass’n of Atlanta v. Am. Ins. Co., 143 F.R.D. 292,
294 (N.D. Ga. 1991) (“The standards for determining whether a party is entitled to
an award of costs under Rule 54(d) are the same for determining whether a party is
‘prevailing’ under 42 USC § 1988.”).
It thus seems apparent that “prevailing party” has the same meaning under
Rule 54(d) as it does in any other context, including fee-shifting statutes such as 42
U.S.C. § 1988.
b.

The Meaning of “Prevailing Party”

To qualify as a prevailing party, a plaintiff must obtain at least some relief
on the merits of his claim. Farrar, 506 U.S. at 111; Buckhannon, 532 U.S. at 603.
The plaintiff must obtain an enforceable judgment again the defendant from whom
fees are sought. Id. A party may be considered prevailing if it succeeds on any
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significant issue in litigation which achieves some of the benefit the parties sought
in bringing suit. Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S.
782, 789, 109 S. Ct. 1486, 1492, 103 L. Ed. 2d 866 (1989) (citations and
quotations omitted). Further, there must be a court-ordered, material alteration of
the legal relationship of the parties. Smalbein ex rel. Estate of Smalbein v. City of
Daytona Beach, 353 F.3d 901, 904 (11th Cir. 2003) (citations and quotations
omitted). This requires an award by the court of either at least some relief on the
merits of the claim, or judicial imprimatur on the change in the legal relationship
between parties. Id.
c.

Application

Applying the principles set forth above, Mullinax was not a prevailing party
in this litigation.
In this case, Mullinax has not sought any equitable relief or other order from
the court that would cause Defendants to have to do anything. Instead, Mullinax
sought only one thing in this cause: money damages. However, the jury returned a
verdict finding that, despite the fact that his constitutional rights were violated,
Mullinax deserved no money damages. Although presented with the option to do
so, the jury chose not to award him even nominal damages of one dollar.
As a result of the jury’s verdict, Defendants owe Mr. Mullinax absolutely
nothing. Mullinax obtained zero relief on the merits of his claim. There was no
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“enforceable judgment,” Farrar, 506 U.S. at 111, and no “material alteration of the
legal relationship of the parties.” Smalbein, 353 F.3d at 904. There was not “some
relief,” Buckhannon, 532 U.S. 603—there was no relief.
The judgment that this Court handed to Mullinax, though surely a
vindication of the civil rights violations that he suffered, was an otherwise hollow
document. It did not compel Defendants to do anything at all. Their lives were not
one bit different the day before trial than the day after.
It is therefore apparent that Mullinax has not met any of the criteria of a
prevailing party, and he is not a prevailing party and not entitled to costs. Indeed, it
seems apparent based on the standards defining “prevailing party” for the purposes
of Rule 54(d) and other fee-shifting statutes that a party who obtains a zero-dollar
judgment, and no other relief, is not a prevailing party and is not entitled to any
costs or fees. See Nance v. Maxwell Fed. Credit Union (MAX), 186 F.3d 1338,
1343 (11th Cir. 1999) (“To qualify as ‘prevailing,’ a plaintiff must obtain an
enforceable judgment against the defendant . . . [but a] judgment with no damages
at all is not an ‘enforceable judgment’—there is simply nothing to enforce.”)
(citations and quotations omitted). See also Harvey-Williams v. Peters, 117 F.3d
1420 (6th Cir. 1997) (affirming denial of fees following zero-damages verdict);
Mounson v. Moore, 117 F. App’x 461, 462 (7th Cir. 2004) (same).

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Mullinax cites a handful of cases—none binding—where courts have
awarded costs after a zero-dollar judgment. See, e.g., Mary M. v. N. Lawrence
Cmty. Sch. Corp., 951 F. Supp. 820, 828 (S.D. Ind.) rev;d on other grounds, 131
F.3d 1220 (7th Cir. 1997); Drez v. E.R. Squibb & Sons, Inc., 674 F. Supp. 1432,
1438 (D. Kan. 1987); Walter Int'l Prods., Inc. v. Salinas, No. 07-20136-CIVSEITZ, 2010 WL 2976919, at *2 (S.D. Fla. July 19, 2010). However, these cases
cannot stand against the plain language of the standards, which require at least
some alteration of the relationship between the parties. For example, the Mary M.
court relied on the rule that the prevailing party is the party “in whose favor
judgment is rendered . . . regardless of the amount of damages awarded.” Mary M.,
951 F. Supp. at 828. However, the court’s interpretation of that rule is no longer
good law, as the U.S. Supreme Court later explicitly qualified the rule and held that
it included only a party “who has been awarded some relief by the court.”
Buckhannon, 532 U.S. 603. Furthermore, the Drez and Walter courts both ignore
the admonition that there must be at least some alteration of the relationship
between parties. See, e.g., Drez at 674 F. Supp. 1438 (“The court perceives no
legally significant difference between a $1.00 nominal damage award and the
award of no damages in the present case.”); Walter, 2010 WL 2976919 (finding the
distinction between nominal damages and zero damages was “meaningless”).
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Although a nominal-damages verdict alters the relationship between the parties, a
zero-damages verdict does not.
III.

CONCLUSION

Mullinax is thus not a prevailing party and is not entitled to recover his costs
under Fed. R. Civ. P. 54(d). The zero-damages verdict did not materially alter the
relationship between Mullinax and Defendants, and Mullinax thus did not prevail
in this action.
The relief requested in Defendant’s Motion to Strike Plaintiff’s Bill of Costs
(Doc. 153) is GRANTED. The clerk is directed to STRIKE Plaintiff’s Bill of
Costs (Doc. 150) from the record.

ORDERED on March 11, 2015.
/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE

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