Black v. Wrigley et al

Filing 480

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 9/8/2020: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court denies plaintiff Katherine Black's motion to alter or amend judgment 470 . (mk)

Case: 1:17-cv-00101 Document #: 480 Filed: 09/08/20 Page 1 of 5 PageID #:15641

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

KATHERINE BLACK,
Plaintiff,
vs.
CHERIE WRIGLEY, MELISSA
COHENSON, BRIAN A. RAPHAN,
P.C., and PAMELA KERR,
Defendants.

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Case No. 17 C 101

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
On August 3, 2020, the Court entered an order denying plaintiff Katherine Black's
motions for judgment as a matter of law and for a new trial and granting in part
defendant Pamela Kerr's motion for costs, awarding Kerr $19,004.97 in costs against
Black. On August 30, 2020, Black filed a motion entitled "Plaintiff's Motion to Alter or
Amend Judgment Under Fed. R. Civ. P. 59(e)," challenging the award of costs. The
Court denies this motion for the reasons stated below. The Court also denies Black's
motion for sanctions contained within her motion to alter or amend.
There are two preliminary procedural points. First, the Court does not believe
that Black's motion is properly considered as a motion under Federal Rule of Civil
Procedure 59(e). That rule governs motions "to alter or amend a judgment." Fed. R.
Civ. P. 59(e). The judgment in this case was entered on August 26, 2019, after the jury
returned its verdict following the trial of this case. An award of costs is not a "judgment"

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as the Civil Rules use that term. Rather, such an award is collateral to the judgment.
See generally Buchanan v. Stanships, Inc., 485 U.S. 265, 268-69 (1988); see also
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990) (like imposition of costs,
imposition of sanctions is not a judgment on the merits but rather involves a collateral
issue). In addition, Black already filed one motion under Rule 59(e), and generally
speaking a party is not entitled to file two such motions. See, e.g., Andrews v. E.I.
DuPont de Nemours and Co., 447 F.3d 510, 516 (7th Cir. 2006) ("A party gets one shot
at asking the district court to alter or amend the judgment and then he must move
forward with his appeal—at least in the ordinary case."; the rare exception is when the
district court, in ruling on a Rule 59(e) motion, changes matters of substance in a
judgment). Black's motion is better characterized as a motion under Federal Rule of
Civil Procedure 60(b), which allows for relief "from a final judgment, order, or
proceeding." Fed. R. Civ. P. 60(b) (emphasis added).
Second, after filing the motion, Black filed a notice of appeal, so there is a
question of whether this Court still has the authority to decide the motion. The Court
believes it does, pursuant to Federal Rule of Civil Procedure 62.1(a)(2), which permits a
district court to deny a party's motion for relief after a notice of appeal has been filed.
The Court therefore turns to the merits of Black's motion. As an initial matter,
Black repeatedly asserts that Kerr has not shown that she was entitled to costs. Black
applies the wrong standard. Because Kerr was the prevailing party, recovery of costs is
presumed, and Black, not Kerr, carried the burden to show that the taxed costs were not
appropriate. See Richardson v. Chicago Transit Auth., 926 F.3d 881, 893 (7th Cir.
2019) ("There is a presumption that the prevailing party will recover costs, and the

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losing party bears the burden of an affirmative showing that taxed costs are not
appropriate. This presumption is difficult to overcome and therefore, the district court’s
discretion is narrowly confined." (internal quotation marks and citations omitted)).
Black contends that the Court made two inconsistent findings regarding Bernard
Black. Specifically, the Court found that Katherine Black had not sustained her burden
of showing that Kerr should not recover costs for serving Bernard in Illinois at a time
when Kerr's counsel supposedly knew he was living in Israel. The Court stated that
"[t]his is because [Black] has not submitted evidence showing that Bernard was living in
Israel at that time or that Kerr knew he was living there." Black v. Wrigley, No. 17 C
101, 2020 WL 4437677, at *25 (N.D. Ill. Aug. 3, 2020). Separately, the Court awarded
costs for the video deposition of Bernard because "[h]e was on sabbatical in Israel at
the time of the deposition, so it was reasonable for Kerr to presume that he might not be
within the Court's subpoena power at the time of trial." Id. at *26.
Black contends the two rulings are inconsistent. They are not. A court's
determination of whether a deposition-related cost is necessary "must be made in light
of the facts known at the time." Mother & Father v. Cassidy, 338 F.3d 704, 712 (7th Cir.
2003). Kerr incurred these two items of costs at different times. On the first, Black did
not show that Kerr knew at the time she initiated service of a deposition subpoena that
Bernard was living in Israel, and thus she did not show that the costs of service were
unnecessary. On the second, by the time Bernard was deposed, Kerr unquestionably
knew that he was in Israel; that is why the deposition was conducted remotely. The fact
that Kerr knew Bernard was in Israel later, when the deposition was taken, does not
lead to the conclusion that she knew at an earlier time that he was in Israel then. Black

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has not provided any evidence showing that Kerr knew this when she caused service of
the deposition subpoena.
Black also contends, without citing any evidence or case law, that the Court
should reduce the award of taxable costs by three-fourths because, she claims, the
defendants shared costs and Kerr was allegedly defrauding her insurer. The Court
previously concluded that "provided no evidence in support of this contention and thus
has not carried her burden to prove that these costs are not appropriate." Black, 2020
WL 4437677, at *26. That remains true. See, e.g., Thompson v. Village of Monee, No.
1:12-CV-5020, 2016 WL 128005, at *2 (N.D. Ill. Jan. 12, 2016) (St. Eve, J.) (declining to
apportion the costs to defendants on a pro rata basis where plaintiff provided no
explanation or evidence to support that method of apportionment).
Black contends that Kerr conceded that she paid the costs in question. That is
incorrect. Kerr asserted that she paid the costs she requested; she did not assert that
she paid Wrigley's costs. See Kerr's Reply in Supp. of Mot. for Taxation of Costs at 12
("[T]he fact remains that these costs are independent from those incurred by Ms.
Wrigley, or the other defendants."). If anything, Kerr has shown that she split costs with
Wrigley; Kerr sought to recover half of the costs of the demonstrative exhibits (a request
the Court denied).
Black asks the Court to order Wrigley to turn over certified records showing she
personally paid the costs. But although Black contends that there is a "virtual certainty"
that Kerr was "dumping her co-defendants' costs on her insurer," she does not have
evidence to prove that. Pl.'s Mem. at 7. Black's suspicions are not enough to entitle her
to discovery at this point, let alone to sustain her burden of showing that the taxed costs

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are not appropriate. There is a strong presumption in favor of awarding costs to the
prevailing party, and Black has not met her burden of showing that presumption does
not apply here. See Richardson, 926 F.3d at 893.
Finally, Black includes in her motion a request to impose sanctions upon Kerr,
Wrigley, and their attorneys—though she has made no separate motion in this regard.
She accuses them of repeatedly lying to the Court, during depositions, and at trial. By
her request for sanctions, Black is essentially attempting to relitigate the case. A good
deal of what she describes happened prior to trial and, if her allegations are correct,
could have been brought to the Court's attention at the time (and certainly way before
now). And the claimed perjury, which Black contends was demonstrable, involves a
rehash of one point the Court rejected in denying a new trial 1 and other issues that
Black could have pointed out to the jury as a basis to find in her favor and against the
defendants. Black has offered no viable basis to revisit all of these points now, not only
after trial, but after the filing of post-trial motions and even after the ruling on those
motions. The Court denies her request for sanctions.
Conclusion
For the reasons stated above, the Court denies plaintiff Katherine Black's motion
to alter or amend judgment [470].
Date: September 8, 2020
________________________________
MATTHEW F. KENNELLY
United States District Judge
1

In her motion for a new trial, Black asserted that the Court erroneously excluded
evidence she contended showed that Wrigley falsely testified about when she deleted
an old e-mail account and began using a new one. As the Court explained in its ruling
on that motion, however, Black did not submit evidence of the alleged perjury or even
evidence showing that it was relevant to this case. Black, 2020 WL 4437677, at *19.
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