Anderson v. Godinez et al

Filing 141

ORDER re 132 Bill of Costs filed by Jeannette Cowan, Salvador A. Godinez, Richard Harrington, Terri Anderson, Sandra Funk: For the reasons delineated in the attached Order, the Court DENIES and OVERRULES Plaintiff's objection (Doc. 135) to the Bill of Costs (Doc. 132) and AWARDS costs in the total amount of $246.90 to Defendants. The Clerk of Court SHALL TAX COSTS in the amount of $246.90.Signed by Chief Judge Michael J. Reagan on 9/7/16. (soh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
OTHA ANDERSON,
Plaintiff,
vs.
SALVADOR GODINEZ,
TERRI ANDERSON,
RICHARD HARRINGTON,
JEANNETTE COWAN,
and SANDRA FUNK,
Defendants.

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Case No. 13-cv-1237-MJR-DGW

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
In November 2013, this civil rights suit was filed by Otha Anderson (Plaintiff), an
inmate at Menard Correctional Center, under 42 U.S.C. 1983. On August 4, 2016, the
undersigned granted Defendants’ summary judgment motion. Judgment was entered
in favor of Defendants and against Plaintiff the same day.
Now before the Court is Defendants’ August 8, 2016 bill of costs (Doc. 132), to
which Plaintiff objected via “Motion to Dismiss Defendants’ Bill of Costs” a week later
(Doc. 135), and Defendants replied on August 30, 2016 (Doc. 140).

Defendants seek to

recover just the $246.90 incurred in deposing Plaintiff in this lawsuit, as reflected on the
bill of Midwest Litigation Services (Doc. 132, p. 4).
Federal Rule of Civil Procedure 54(d)(1) entitles prevailing parties to recover
their costs, other than attorneys’ fees. Richardson v. City of Chicago, 740 F.3d 1099,
1102 (7th Cir. 2014). Rule 54(d) provides that unless a federal statute, rule, or court
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order says contra, costs “should be allowed” to the prevailing party. In other words,
under Rule 54(d) “prevailing parties presumptively recover their costs.” Loomis v.
Exelon, 658 F.3d 667, 674 (7th Cir. 2011). Accord Myrick v. WellPoint, Inc., 764 F.3d 662,
666 (7th Cir. 2014), cert. denied, 135 S. Ct. 1508 (2015).
Rule 54(d)(1) “codifies a venerable presumption that prevailing parties are
entitled to costs.” Marx v. General Revenue Corp., -- U.S. --, 133 S. Ct. 1166, 1172 (2013).
Stated another way, Rule 54(d) establishes a strong presumption that the prevailing
party will be awarded the costs of litigation identified in 28 U.S.C. 1920. See, e.g.,
Montanez v. Simon, 755 F.3d 547, 557 (7th Cir.), cert. denied sub nom. Montanez v.
Chicago Police Officers FICO, 135 S. Ct. 459 (2014); Johnson v. Cypress Hill, 641 F.3d
867, 873 (7th Cir. 2011); U.S. Neurosurgical, Inc. v. City of Chicago, 572 F.3d 325, 333 (7th
Cir. 2009). And the “process for awarding costs is intended to be summary.” Extra
Equipamentos E Exportacao, Ltda. v. Case Corp., 541 F.3d 719, 727 (7th Cir. 2008), cert.
denied, 555 U.S. 1175 (2009).
Although in common parlance, the word “costs” often is equated with
“expenses,” the “concept of taxable costs under Rule 54(d) is more limited” -- such costs
are modest in scope and “a fraction of the nontaxable expenses borne by litigants.”
Taniguchi v. Kan Pacific Saipan, Ltd., -- U.S. --, 132 S. Ct. 1997, 2006 (2012). The items
of recoverable costs are limited by statute. In 28 U.S.C. 1920, Congress delineated the
specific categories of costs which a district court can award. Those categories include:
(1)
(2)
(3)

Fees of the clerk and marshal;
Fees for printed or electronically recorded transcripts necessarily
obtained for use in the case;
Fees and disbursements for printing and witnesses;
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(4)
(5)
(6)

Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the
case;
Docket fees under section 1923 of this title; [and]
Compensation of court appointed experts [and] … interpreters….

Without question, Defendants are the prevailing parties in this case. They seek
to recover a proper item of costs. They have provided an affidavit showing that the
deposition transcript was necessary to litigate this case. And the cost of the transcript is
reasonable (the $2.90 price per page is less than the maximum allowable transcript rate
set by the Judicial Conference of the United States).
As the losing party in the litigation, Plaintiff shoulders the burden of
demonstrating that costs sought are not allowable. See Harney v. City of Chicago, 702
F.3d 916, 927 (7th Cir. 2012), citing Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854,
864 (7th Cir. 2005)(“… the losing party bears the burden of an affirmative showing
that taxed costs are not appropriate.”); Johnson v. Target Corp., 487 Fed. App’x 298,
cert. denied, 133 S. Ct. 1735 (2013) (“A prevailing party … presumptively receives the
costs of litigation and it is the losing party’s burden to overcome this presumption.”).
He has not done so.
The law of this Circuit recognizes that district courts may deny costs if the losing
party presents competent proof that he is financially unable to pay an award of costs, or
the prevailing party engaged in misconduct en route to prevailing. See, e.g., Mother &
Father v. Cassidy, 338 F.3d 704, 708 (7th Cir. 2003). See also Rivera v. City of Chicago,
469 F.3d 631, 635 (7th Cir. 2006) (“Since 1983, this Court has held that it is ‘within the

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discretion of the district court to consider a plaintiff's indigency in denying costs
under Rule 54(d).’”).
It is significant to note that indigence does not automatically excuse a losing party
from paying the prevailing party’s costs. See, e.g., Luckey v. Baxter Healthcare Corp.,
183 F.3d 730, 733–34 (7th Cir. 1999) (“We have held that an award of costs is proper
even when the unsuccessful litigant had been allowed to proceed in forma
pauperis.”). If indigence is the basis for objecting to costs, the losing party must provide
sufficient documentation on which the district court can make a factual finding that the
losing party is “incapable of paying the court-imposed costs at this time or in the
future.” Rivera, 469 F.3d at 635, quoting McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir.
1994). The 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.”
Id.
Plaintiff has supplied no such documentation and does not even argue that his
indigence precludes him from paying the costs here. The Court will not make this
argument for him. See Sklyarsky v. ABM Janitorial Services-N. Cent., Inc., 494 Fed.
App'x 619, 623 (7th Cir. 2012) (the indigence exception “applies only if a losing party
shows that it is incapable of paying court-imposed costs at the time of judgment or in
the future”), and Rivera, 469 F.3d at 635-36 (emphasizing that the indigence
“exception is a narrow one”). So the only other ground on which the undersigned can
deny the requested reasonable and necessary costs is misconduct by the prevailing
parties.
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That is the theme of Plaintiff’s objection here – he says the deposition transcript
was “falsely record,” because no lawyer was present on his behalf. But Plaintiff was not
represented by counsel herein. It is not as if his attorney was denied the right to be
present. Plaintiff proceeded pro se, and Defendants did not engage in misconduct by
deposing him as such. Additionally, Defendants note that Plaintiff never lodged this
objection (absence of counsel) during the deposition. And to the extent Plaintiff takes
issue with the Court’s denial of his motion for recruitment/appointment of counsel,
that denial is not the Defendants’ “misconduct” so as to block taxation of costs.
Plaintiff chose to file this lawsuit, and once he did, Defendants had to defend it.
Taking Plaintiff’s deposition was clearly a reasonable (indeed, necessary) step in the
litigation, and the costs incurred thereby are recoverable. Plaintiff has not overcome the
presumption that Defendants are entitled to this reasonable item of costs.
For all these reasons, the undersigned DENIES and OVERRULES Plaintiff’s
objection (Doc. 135) to the Bill of Costs (Doc. 132) and AWARDS costs in the total
amount of $246.90 to Defendants. The Clerk of Court SHALL TAX COSTS in the
amount of $246.90.
IT IS SO ORDERED.
DATED September 7, 2016.
s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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