Edens v. O'Brien et al
ORDER-WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 12/23/2016: For the following reasons, plaintiff's objection to the defendant' bill of costs 183 is granted in part and denied in part. The court will award costs to D r. Crisham, Dr. O'Brien, and Tina O'Brien under Fed. R. Civ. P. 54. However, the court agrees with plaintiff that certain costs should not be imposed. The court will reduce the costs for Dr. Crisham by $92.44, for a new total of 6;1,344.98. The court will also reduce the costs for Dr. O'Brien and Tina O'Brien by $1,357.32, for a new total of $2,659.20. Costs will be awarded at this time, but execution of the judgment on such costs will be stayed until pla intiff's economic circumstances improve, such that he is financially able to pay. If circumstances change, Dr. Crisham, Dr. O'Brien, and Tina O'Brien may move at that time to lift the stay. [see Statement/Opinion] Signed by the Honorable Philip G. Reinhard on 12/23/2016. Mailed notice (kms)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
James R. Edens,
John O'Brien et al.,
Case No. 14 CV 50056
Judge Philip G. Reinhard
For the following reasons, plaintiff’s objection to the defendant’ bill of costs  is
granted in part and denied in part. The court will award costs to Dr. Crisham, Dr. O’Brien, and
Tina O’Brien under Fed. R. Civ. P. 54. However, the court agrees with plaintiff that certain
costs should not be imposed. The court will reduce the costs for Dr. Crisham by $92.44, for a
new total of $1,344.98. The court will also reduce the costs for Dr. O’Brien and Tina O’Brien
by $1,357.32, for a new total of $2,659.20. Costs will be awarded at this time, but execution of
the judgment on such costs will be stayed until plaintiff’s economic circumstances improve, such
that he is financially able to pay. If circumstances change, Dr. Crisham, Dr. O’Brien, and Tina
O’Brien may move at that time to lift the stay.
On August 9, 2016, this court granted the defendants’ motions for summary judgment.
See . On September 7, 2016, defendants John O'Brien, D.D.S., Tina O'Brien, D.D.S., and
Wexford Health Resources submitted a bill of costs , and on September 9, 2016, Dr.
Crisham did so . On October 19, 2016, plaintiff filed an objection. See .
In the objection, plaintiff first points out that this court has discretion as to whether to
impose the costs at all. As plaintiff notes, the Seventh Circuit has held that a district court may
consider a party’s current and future indigence when ruling on a Fed. R. Civ. P. 54(d)(1) motion
for a bill of costs. See Rivera v. City of Chicago, 469 F.3d 631, 636 (7th Cir. 2006). The
Seventh Circuit specifically stated with regard to the indigence exception, however, that “we
note that the exception is a narrow one. Rule 54(d)(1) provides a presumption that costs are
awarded to the prevailing party, and the burden is on the non-prevailing party to overcome this
According to Rivera, in order to find that a party cannot pay costs, the court must make
First, the district court must make a threshold factual finding that the losing party
is incapable of paying the court-imposed costs at this time or in the future. The
burden is on the losing party to provide the district court with sufficient
documentation to support such a finding. This documentation should include
evidence in the form of an affidavit or other documentary evidence of both
income and assets, as well as a schedule of expenses. Requiring a non-prevailing
party to provide information about both income/assets and expenses will ensure
that district courts have clear proof of the non-prevailing party's dire financial
circumstances. Moreover, it will limit any incentive for litigants of modest means
to portray themselves as indigent.
Id. at 635 (internal quotations omitted). If the losing party can make that first threshold finding,
Second, the district court should consider the amount of costs, the good faith of
the losing party, and the closeness and difficulty of the issues raised by a case
when using its discretion to deny costs. No one factor is determinative, but the
district court should provide an explanation for its decision to award or deny
Id. at 635-36.
In Rivera, the Seventh Circuit cited with approval a district court case in which the losing
plaintiff’s affidavit showed that she was currently unable to pay costs but also showed “that the
plaintiff had been employed in the past and had indicated a desire to continue to work, thus, the
court held, it was possible that the plaintiff would again be gainfully employed in the future. The
court awarded costs but stayed the execution of the judgment until the plaintiff's circumstances
changed.” Id. at 636 (citing Denson v. Northeast Illinois Regional Commuter R.R. Corp., 2003
WL 21506946, at *2 (N.D. Ill. 2003) (“Costs will be awarded at this time, but execution of the
judgment on such costs will be stayed. If circumstances change, [the prevailing party] may
move at that time to lift the stay.”). In Rivera itself, the Seventh Circuit overruled the district
court’s decision to deny costs, noting that the losing party was working full time and had an
unclaimed judgment. Moreover, “[g]iven that [the losing party] did not provide the district court
with a schedule of expenses and did not identify any basis for a finding that she will be incapable
of paying the [prevailing party’s] costs at some point in the future, the district court abused its
discretion in denying the [prevailing party’s] costs.” Id. at 637.
Here, plaintiff filed an affidavit which shows that he does not currently have the ability to
pay costs and likely will not have the ability until after January 22, 2017, until which time he is
under house arrest. However, his affidavit does not persuade this court that he will be unable to
find employment at any time in the future and as such that he will be incapable of paying costs at
some point in the future. As such, the court finds that the appropriate course of action under
Rivera is to find that costs are appropriate but that the execution should be stayed until the
plaintiff’s circumstances change.
Even if the court had proceeded to the second inquiry, the court would have found that
the court’s decision to grant summary judgment was not particularly close, as the court would
have found that plaintiff had not raised a genuine issue of material fact even if he had exhausted
his administrative remedies. See . Plaintiff’s somewhat extensive litigation history (the
court counts at least four cases other than this one in which plaintiff was ultimately unsuccessful
and at least one where he was successful) shows that he is familiar with the risks and benefits of
civil litigation and that it is appropriate to hold him accountable for costs in those instances
where he is unsuccessful. In particular, the court notes that in Edens v. Larson, et al, Case No.
00-CV-626-WDS (C.D. Ill.), in which he was successful, plaintiff was awarded costs.
As such, costs will be awarded at this time, but execution of the judgment on such costs
will be stayed until plaintiff’s economic circumstances improve, such that he is financially able
to pay. If circumstances change, Dr. Crisham, Dr. O’Brien, and Tina O’Brien may move at that
time to lift the stay.
Moving on to the costs themselves, plaintiff points to a number of instances where he
contends that the costs listed by the defendants are unreasonable. With regard to Dr. Crisham,
he points to several instances where Dr. Crisham charged for copies of pleadings, motions, and
deposition transcripts, partially on the grounds that docketing in this case was electronic and thus
paper copies were unnecessary. However, pursuant to local rules, parties are required to send
courtesy hard copies to this court. In any case, the court will not deny costs of printing hard
copies of motions and briefs unless they are duplicative. Plaintiff has pointed to $52.69 for
duplicative copies of transcripts, as well as $14.75 for a duplicative copy of the motion for
summary judgment, as well as a $25 fee which is duplicative of an earlier charge for a transcript.
As such, the court will reduce the costs for Dr. Crisham by $92.44, for a new total of $1,344.98.
With regard to Dr. O’Brien and Tina O’Brien, plaintiff points out that in addition to
transcripts for depositions, defendants charged $842.00 for “photocopies,” without specification
as to what documents those consist of or for what purpose, but which appear to be at least in part
duplicative of the transcript fees. Because the lack of specification does not allow the court to
determine which of these photocopies may have or may not have been duplicative, the court
rules in favor of plaintiff on these expenses. Further, plaintiff points to $478.14 and $37.18 in
expenses for travel to depositions and meals, which are not taxable. See Estate of Borst v.
O'Brien, 979 F.2d 511, 517 (7th Cir. 1992). The court agrees with plaintiff as to these expenses
and as such the court will reduce the costs for Dr. O’Brien and Tina O’Brien by $1,357.32, for a
new total of $2,659.20.
United States District Court Judge
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