Kouassi v. Western Illinois University et al
Filing
100
ORDER & OPINION entered by Judge Joe Billy McDade on 7/21/2015. Plaintiffs Motion for Extension of Time to File Notice of Appeal 95 is DENIED. Plaintiffs Objection to Defendants Bill of Costs 94 is OVERRULED, and Defendants Bill of Costs 89 is GRANTED. The Court awards Defendant $1,134.70 as costs in this case. Such costs shall be taxed in favor of Defendant and against Plaintiff, and the Clerk is directed to enter an amended judgment to this effect.(RK, ilcd)
E-FILED
Tuesday, 21 July, 2015 01:47:52 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
GILLES KOUASSI,
Plaintiff,
v.
WESTERN ILLINOIS UNIVERSITY,
Defendant.
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Case No. 13-cv-1265
ORDER & OPINION
This matter is before the Court on Defendant’s Bill of Costs (Doc. 89) and
Plaintiff’s Motion for Extension of Time to File Notice of Appeal. (Doc. 95). For the
reasons discussed below, Defendant will be awarded its costs and Plaintiff’s motion
for extension of time is denied.
PROCEDURAL HISTORY1
Plaintiff Gilles Kouassi formerly worked as an Associate Professor of
Chemistry at Western Illinois University. He filed this lawsuit after the University
denied his application for tenure, alleging that the University and two of its
employees discriminated against him on the basis of race, color, and national origin,
and also retaliated against him. Plaintiff filed his initial complaint on June 10,
2013. (Doc. 1). On October 23, 2014, he filed his Third Amended Complaint. (Doc.
46). The Court dismissed the individual defendants on February 3, 2015. (Doc. 61).
The relevant facts of this case are discussed in great detail in the Court’s Order
and Opinion granting Defendant’s motion for summary judgment. (Doc. 86). To the
extent that it is necessary, the Court presumes familiarity with that document.
What follows is a substantially abbreviated procedural history.
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It granted Western Illinois University’s motion for summary judgment on May 19,
2015 (Doc. 86), and entered final judgment on the same day. (Doc. 87).
Following entry of judgment, Defendant filed with the Court a Bill of Costs in
which it requested that the Clerk tax as costs the $1,134.70 it paid for the
transcript of Plaintiff’s deposition. (Doc. 89). The Court ordered Plaintiff to file any
objections by July 1, 2015. (See Dkt. at Notice on 6/17/2015). Plaintiff filed his
objection one day late, on July 2, 2015, (Doc. 94), to which Defendant responded on
July 16, 2015. (Doc. 98).
Plaintiff filed a Notice of Appeal on June 19, 2015 (Doc. 90), thirty-one days
after the Court entered judgment. On July 2, 2015, Plaintiff filed the pending
Motion for Extension of Time to File Notice of Appeal. (Doc. 95), to which Defendant
responded on July 17, 2015. (Doc. 99).
DEFENDANT’S BILL OF COSTS
Pursuant to Rule 54, “[u]nless a federal statute, these rules, or a court order
provides otherwise, costs – other than attorney’s fees – should be allowed to the
prevailing party.” Fed R. Civ. P. 54(d)(1).
In the Seventh Circuit, “[t]here is 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). Although district
courts enjoy discretion in choosing to award costs, that discretion “is narrowly
confined – the court must award costs unless it states good reasons for denying
them.” Weeks v. Samsung Heavy Indust. Co., 126 F.3d 926, 945 (7th Cir. 1997).
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Defendant seeks costs for the $1,134.70 billed by the court reporter who
recorded Plaintiff’s deposition in this case. (Doc. 89). Plaintiff first objects to this by
arguing that Defendant is not entitled to an award of costs because Defendant has
unclean hands. (See Doc. 94 at 2-4).2 Specifically, Plaintiff alleges that Defendant
created a false transcript of the deposition that “has nothing to do with the true
deposition held on February 3, 2015.” (Id. at 2). Plaintiff argues that Defendant
purposely relied upon a forged transcript in its motion for summary judgment, and
initially ignored correspondence from him in which he demanded that Defendant
produce a new transcript that was more accurate. (Id. at 3). He claims that by
eventually responding to his correspondence without contesting his allegations of
forgery, Defendant implicitly admitted to forging the document.
A non-prevailing party can overcome the presumption that a prevailing party
is entitled to costs by demonstrating misconduct by the prevailing party, which is
what Plaintiff is attempting to do here. See Weeks, 126 F.3d at 945. However,
Plaintiff has not presented anything beyond his own speculation that Defendant
engaged in misconduct. As the Court explained in its Order and Opinion granting
Defendant summary judgment, Plaintiff was responsible for correcting any
problems that he identified with his deposition and he failed to take the steps set
out in Federal Rule of Civil Procedure 30. (See Doc. 86 at 4-7). Plaintiff’s deposition
was taken before Kathy L. Johnson, a certified shorthand reporter on February 3,
2015. (See Dep. of Gilles Kouassi, Doc. 83-3, at 1). Johnson certified that “the
Although Plaintiff filed his objection to Defendant’s bill of costs one day late, the
Court may still consider it on its merits, and does so. See Lorenz v. Valley Forge Ins.
Co., 23 F.3d 1259, 1261 (7th Cir. 1994) (explaining that a deadline under Rule 54(d)
does not pose a jurisdictional bar).
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testimony [of Plaintiff] was taken by stenographic means by [her] to the best of [her]
ability and thereafter reduced to print under [her] direction.” (Id. at 284). She
further certified that she is “neither attorney nor counsel for, nor related, nor
employed by any of the parties to the action in which [the] deposition was taken,”
and that she is “not a relative or employee of any attorney or counsel employed by
the parties hereto, or financially interested in this action.” (Id.).
Although the Court takes Plaintiff at his word that he has identified
mistakes in the deposition transcript, Plaintiff has only speculated that those
mistakes can be attributed to Defendant. As the court reporter certified, Defendant
did not create the transcript. She did. (See id.). And as the Court has previously
explained, Defendant did not bear the burden of making corrections to the
transcript. Plaintiff did. (See Doc. 86 at 4-7). Therefore, Plaintiff cannot rely upon
his unanswered requests that Defendant reproduce the transcript of his deposition
to establish that Defendant forged his transcript or to establish that Defendant
engaged in the sort of misconduct that would take away its entitlement to costs
under Rule 54. Defendant is entitled to an award of costs.
Having determined that Defendant is entitled to costs, the Court must
determine whether the costs that Defendant seeks are recoverable, reasonable, and
necessary. See Hardwick v. John & Mary E. Kirby Hosp., No. 10-CV-2149, 2012 WL
1232266, at *2 (C.D. Ill. Apr. 12, 2012) (citing Cengr v. Fusibond Piping Sys., Inc.,
135 F.3d 445, 454 (7th Cir. 1998)). In most circumstances, the universe of allowable
costs is limited by statute. Pursuant to 28 U.S.C. § 1920(2), “[f]ees for printed or
electronically recorded transcripts necessarily obtained for use in the case” may be
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taxed as costs. Prevailing parties may recover reporter attendances fees as part of
the cost of securing deposition transcripts. See Fitchum v. Ford Motor Co., 57 F.3d
526, 534 (7th Cir. 1995). Here, Defendant seeks to recover $1,134.70, which is the
total of 287 pages of Plaintiff’s deposition transcript billed at $3.10 per page and
seven hours of court reporter attendance time billed at $35.00 per hour. If
reasonable and necessary, these costs are clearly recoverable. See 28 U.S.C. §
1920(2); Fitchum, 57 F.3d at 534.
According to Plaintiff, there was no need for Defendant to take his deposition
or order the transcript. He argues that he has provided a narrative of events that
gives rise to his claims, and that the narrative is supported by both documents that
Defendant had in its possession and documents that he produced to Defendant. He
suggests that Defendant should have relied upon those documents and did not need
to depose him. (See Doc. 94 at 4-5). Plaintiff’s argument that his deposition was
unnecessary is unfounded. Depositions of parties to litigation are routine parts of
litigation and necessary to explore parties’ claims and defenses. Here, Defendant
only took one deposition and heavily relied upon in support of its motion for
summary judgment. (See Doc. 67).
The contention that this deposition was
unnecessary is unfathomable. See Walton v. U.S. Steel Corp., No. 2:09 CV 161, 2012
WL 6114990, at *1 (N.D. Ind. Dec. 7, 2012); see also Cengr, 135 F.3d at 455
(explaining that a deposition need not even be used in a motion in order to be
necessary, so long as it was “’reasonably necessary’ to the case at the time it was
taken. . . .”).
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Because Plaintiff has not made a showing necessary to rebut the presumption
that costs are recoverable by Defendant, and because Defendant’s costs were
recoverable, reasonable, and necessary, Plaintiff’s Objection to Defendant’s Bill of
Costs is overruled and the Court will award Defendant its costs.
PLAINTIFF’S MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL
Plaintiff has also moved the Court for an extension of time to file a notice of
appeal with the Seventh Circuit. “[T]he timely filing of a notice of appeal in a civil
case is a jurisdictional requirement.” Satkar Hospitality, Inc. v. Fox Television
Holdings, 767 F.3d 701, 706 (7th Cir. 2014) (quoting Bowles v. Russell, 551 U.S.
205, 214 (2007)). As discussed above, the Court entered a final judgment against
Plaintiff on May 19, 2015. (Doc. 87). Plaintiff had thirty days to file a timely notice
of appeal, which means it needed to be filed by June 18, 2015. See 28 U.S.C. § 2107;
Fed. R. App. P. 4(a)(1)(A). Because Plaintiff filed his notice of appeal on June 19,
2015, it was one day late.
The Federal Rules of Appellate Procedure grant this Court the ability to
extend the time for Plaintiff to file a notice of appeal so long as he shows either
excusable neglect or good cause for failing to appeal on time, and has moved for an
extension of time “no later than 30 days after the time prescribed [to appeal]
expires.” Fed. R. App. P. 4(a)(5).
Here, Plaintiff filed his motion on July 2, 2015, which is within the applicable
thirty-day window. (Doc. 95). In it, he explains that he missed the deadline for
appealing because he miscalculated it. (Id. at 2). Specifically, he claims that he “was
not able to make the connection with the fact that May 2015 has 31 days [instead of
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30 days]” because he was busy moving his family to a new home in Eau Clair,
Wisconsin – a process that left him exhausted. (Id.). This is an argument for
excusable neglect.3
As the Seventh Circuit has recently explained, “few circumstances will
ordinarily qualify” as excusable neglect. Satkar Hospitality, Inc., 767 F.3d at 706.
The excusable neglect standard is equitable, and courts should take into
consideration “relevant circumstances, including (1) the danger of prejudice to the
non-moving party; (2) the length of the delay and its impact on judicial proceedings;
(3) the reason for the delay . . .; and (4) whether the movant acted in good faith.”
McCarty v. Astrue, 528 F.3d 541, 544 (7th Cir. 2008) (citing Pioneer Inv. Serv. Co. v.
Brunswick Assocs., 507 U.S. 380, 395 (1993)). However, these first two factors “do
little analytical work in this context and thus are rarely dispositive.” Satkar
Hospitality, Inc., 767 F.3d at 707. This is because “[t]he time limit for requesting an
extension is quite short . . . so there will never be a long delay, and the short time
frame keeps the risk of prejudice low.” Id. Over-relying on the absence of prejudice
in this situation would read “[t]he word ‘excusable’ . . . out of the rule.” Prizevoits v.
Indiana Bell Tel. Co., 76 F.3d 132, 134 (7th Cir. 1996).
“Excusable neglect” and “good cause” – the two reasons for which a Court may
extend a litigant’s deadline for filing a notice of appeal – are not interchangeable.
“The excusable neglect standard applies in situations in which there is fault; in
such situations, the need for an extension is usually occasioned by something within
the control of the movant.” Sanders v. Vargas, No. 11-C-405, 2012 WL 2254200, at
*1 (E.D. Wis. June 15, 2012). However, “[t]he good cause standard applies in
situations in which there is no fault—excusable or otherwise.” Id. Here, Plaintiff’s
reason for failing to timely file a notice of appeal was within his control, so the good
cause standard does not apply. See id.
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More important to the Court’s analysis is the reason that the litigant is
requesting an extension of time. See Sherman v. Quinn, 668 F.3d 421, 425-27 (7th
Cir. 2012). For example, in Lorenzen v. Employees Retirement Plan, 896 F.2d 228
(7th Cir. 1990), the Seventh Circuit allowed a defendant to continue with its appeal
in spite of filing a late notice because confusing post-judgment filings by the
plaintiff complicated the docket and induced the defendant into making the
“natural” mistake of assuming an earlier – and invalid – notice of appeal was, in
fact, valid. Id. at 230-234. However, litigants cannot establish excusable neglect
simply because they failed to properly calculate a deadline. See McCarty, 528 F.3d
at 544 (citing Marquez v. Mineta, 424 F.3d 539, 541 (7th Cir. 2005)) (“A simple case
of miscalculating a deadline is not a sufficient reason to extend time, and judges do
not have “carte blanche” authority to allow untimely appeals.”); Raven v. Madison
Area Technical Coll., 443 F. App’x 210, 212 (7th Cir. 2011) (identifying mistakes in
calculating the time to appeal as “egregious” errors for which prejudice need not be
shown).
Plaintiff has not made a proper showing of excusable neglect. He argues that
he was preoccupied with moving, and therefore miscalculated the deadline for filing
his appeal. He has not argued that he was induced into making a mistake by
Defendant’s litigation conduct, that he misunderstood how to calculate the time for
appealing, or that obligations related to his move kept him from being able to
effectively file his notice of appeal on time. Rather, he argues that he made a
mistake in adding thirty days to the date of the final judgment in his case, and he
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attributes this mistake to occurrences in his personal life, namely fatigue caused by
and preoccupation with his move.
Plaintiff’s reason for miscalculating the deadline – busyness in his personal
life – is analogous to the reason a litigant missed his deadline to file a notice of
appeal in Sherman. There, a plaintiff filed a motion to extend the time to file a
notice of appeal one day after the time to file a notice of appeal expired. 668 F.3d at
424. He argued that he had good cause for filing a late appeal: his attorney was
running for Governor of Illinois, a process that “completely overwhelmed [the
attorney’s] capacity to complete all tasks before [him],” and resulted in the deadline
to file a notice of appeal “slip[ping] through the cracks.” Id. Under that
circumstance, the Seventh Circuit held that the district court abused its discretion
in allowing the plaintiff to file a late notice of appeal. Id. at 427. There, counsel was
“overloaded with obligations,” that were personal in nature, voluntary, and not
marked with the type of professional altruism that has occasionally excused missed
deadlines. Id. This did not amount to excusable neglect. Id.
The Court recognizes that moving residences can be a physically taxing and
logistically difficult endeavor. However, this personal busyness is not the type that
can excuse missing the deadline for filing a notice of appeal. See id. Moreover, the
Court notes that Plaintiff was able to do all that was necessary to file a notice of
appeal and did so under correct assumptions as to how to calculate the deadline for
filing a notice of appeal. He simply failed to consult a calendar. Although this may
seem like an ordinary inconsequential oversight, it is not: “[d]epriving one’s case of
a prerequisite for appellate review can hardly be considered a ‘relatively minor
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mistake.” See McCarty, 528 F.3d at 545 (7th Cir. 2008). The Court concludes that
Plaintiff’s reason for not filing a timely notice of appeal cannot satisfy the excusable
neglect standard. 4
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Extension of Time to File
Notice of Appeal (Doc. 95) is DENIED. Plaintiff’s Objection to Defendant’s Bill of
Costs (Doc. 94) is OVERRULED, and Defendant’s Bill of Costs (Doc. 89) is
GRANTED. The Court awards Defendant $1,134.70 as costs in this case. Such costs
shall be taxed in favor of Defendant and against Plaintiff, and the Clerk is directed
to enter an amended judgment to this effect.
Entered this 21st day of July, 2015.
s/Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
The Court recognizes that Plaintiff has represented himself throughout much of
this litigation, including its final stages. This alone cannot help Plaintiff. Pro se
litigants are not accorded the same slack with respect to deadlines as they are with
filings. Although the Court will liberally construe pro se filings (and has liberally
construed Plaintiff’s filings), litigants are not entitled to enlarged filing deadlines
because they are pro se. Raven, 443 F. App’x at 212.
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