Ciummo v. Ruge et al

Filing 65

MEMORANDUM Opinion and Order Signed by the Honorable Morton Denlow on 2/15/2012.Mailed notice(ldg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MARK CIUMMO,
Plaintiff,
v.
MARK RUGE and
CHRISTOPHER SEFTON,
Defendants.

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Case No. 09 C 3780
Magistrate Judge Morton Denlow

MEMORANDUM OPINION AND ORDER

I. BACKGROUND FACTS
Defendants Mark Ruge and Christopher Sefton (“Defendants”) prevailed at trial when
a jury returned a verdict and this Court entered a judgment in their favor on November 16,
2011. Dkt. 55. The Court awarded court costs to Defendants and against Plaintiff Mark
Ciummo (“Plaintiff”). Id. Defendants subsequently submitted their Bill of Costs requesting
$4,734.47 pursuant to Federal Rule of Civil Procedure 54 and 28 U.S.C. § 1920. Plaintiff
submitted a response requesting that the Bill of Costs be denied.
II. DISCUSSION
Federal Rule of Civil Procedure 54(d) establishes a strong presumption that a
prevailing party will recover costs. Mother & Father v. Cassidy, 338 F.3d 704, 708 (7th Cir.
2003). A court shall review a proposed bill of costs in scrupulous detail and award only costs
that are reasonable, both in amount and necessity to the litigation. Shah v. Vill. of Hoffman
Estates, No. 00 C 4404, 2003 WL 21961362, at *1 (N.D. Ill. Aug. 14, 2003). A court is

vested with wide discretion to determine whether and to what extent costs may be awarded
to the prevailing party. Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 945 (7th Cir.
1997); Blackwell v. Kalinowski, No. 08 C 7257, 2011 WL 3555770, at *1 (N.D. Ill. Aug. 11,
2011). The losing party has the burden of an affirmative showing that the costs are not
appropriate. Blackwell, 2011 WL 355770, at * 1.
The Seventh Circuit recognizes only two situations which may warrant the denial of
costs. Mother & Father v. Cassidy, 338 F.3d 704, 708 (7th Cir. 2003); Boback Sausage Co.
v. A&J Seven Bridges, Inc., No. 07 C 4718, 2011 U.S. Dist. LEXIS 58764, at *2 (N.D. Ill.
May 31, 2011). First is “misconduct by the prevailing party that is worthy of a penalty, such
as calling unnecessary witnesses, raising unnecessary issues or otherwise unnecessarily
prolonging the proceedings.” Collins v. United States, No. 03 C 2958, 2008 U.S. Dist.
LEXIS 46798, at *6 (N.D. Ill. Jan. 3, 2011). Plaintiff does not allege, and the Court does not
find, that Defendants engaged in any misconduct in defending this hard fought case.
The second situation, and the one which Plaintiff argues here, requires the court to
make a threshold finding that the losing party is incapable of paying costs and then consider
the amount of costs, the good faith of the losing party, and the closeness and difficulty of the
issues raised by the case. Rivera v. City of Chi., 469 F.3d 631, 635-36 (7th Cir. 2006). The
exception is a narrow one and the burden is on the losing party to provide sufficient
documentation to support such a finding, including evidence of both income and assets, as
well as a schedule of expenses. Id.

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Plaintiff has failed to establish that he is indigent to the extent that would warrant a
denial of costs. At the trial in November 2011, Plaintiff’s brother testified that Plaintiff lived
with him in Illinois and they purchased the home together. Plaintiff’s brother testified that
Plaintiff had been working as a handyman for the past two to three months (since August or
September 2011) which is in direct conflict with Plaintiff’s affidavit that his only work since
2008 was for three days in March or April 2011.
Plaintiff’s affidavit states that he stopped receiving social security disability benefits
in January 2010 and he is capable of working. Plaintiff states that he has applied for at least
1,000 mechanic jobs that do not require lifting more than ten pounds but has been
unsuccessful in obtaining employment. Further, he has no present source of income, he lives
with his parents in Arizona, and he does not contribute to household expenses. While this
information may establish that Plaintiff is in a difficult situation, it does not establish that
Plaintiff “is incapable of paying the court-imposed costs at this time or in the future.” Rivera
v. City of Chi., 469 F.3d at 635 (quoting Chapman v. AI Transp., 229 F.3d 1012, 1039 (11th
Cir. 2000)); id. at 636 (“Rivera was required to show not only that she was incapable of
paying court-ordered costs at the time they were imposed but also that she will be incapable
of paying them in the future.”). Plaintiff is a forty-one year old who has skills as a mechanic
and handyman, who is capable of working.
Further, the Court finds that the costs requested are eminently reasonable for a case
that proceeded through a full jury trial. The case was not a close one in the eyes of the jury,
as evidenced by the return of a verdict within one hour of the conclusion of trial.
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Plaintiff has not objected to any specific costs. The Court has reviewed the Bill of
Costs and supporting documentation in detail and finds all of the costs to be appropriate. The
Court finds that Plaintiff has not met his burden of proving that he is incapable of paying the
court-imposed costs at this time or in the future. Therefore, the Court awards Defendants
$4,734.47 in court costs against Plaintiff.
III. CONCLUSION
For the reasons set forth in this opinion, the Court awards Defendants Mark
Ruge and Christopher Sefton court costs against Plaintiff Mark Ciummo in the amount
of $4,734.47.
SO ORDERED THIS 15th DAY OF FEBRUARY, 2012.

_____________________________________
MORTON DENLOW
UNITED STATES MAGISTRATE JUDGE
Copies sent to:
David M. Smolin
Bruce E. Brandwein
Brandwein & Smolin
20 South Clark Street, Suite 410
Chicago, IL 60603

Counsel for Defendants

Counsel for Plaintiff
Iain D. Johnston
Heidi A. Steiner
Johnston Greene LLC
542 South Dearborn Street, Suite 1100
Chicago, IL 60605

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