STRONG v. DELAWARE COUNTY

Filing 65

ENTRY - ON MOTION FOR BILL OF COSTS; The Court concludes that Mr. Strong has not met his burden of showing that the amounts requested by Delaware County are unreasonable, or that indigence renders him unable to pay court-imposed costs sometime in the future. Therefore, Delaware County's Motion for Bill of Costs in the amount of $4,006.81 (Dkt. 53) is GRANTED. Signed by Judge Tanya Walton Pratt on 5/9/2014. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARWIN STRONG,
Plaintiff,
v.
DELAWARE COUNTY,
Defendant.

)
)
)
)
) Case No. 1:11-cv-01644-TWP-DML
)
)
)
)

ENTRY ON MOTION FOR BILL OF COSTS
This matter is before the Court on Defendant Delaware County’s Motion for Bill of Costs
filed pursuant to Federal Rule of Civil Procedure 54(d)(1), seeking costs in the amount of
$4,006.81 (Dkt. 53). The Court previously granted Delaware County’s Motion for Summary
Judgment and entered judgment in its favor (Dkts. 51 and 52). Plaintiff Marwin Strong (“Mr.
Strong”) filed a response in objection to Delaware County’s motion (Dkt. 59). Thereafter, the
Court stayed ruling on Defendant’s Bill of Costs pending Mr. Strong’s appeal to the Seventh
Circuit Court of Appeals (Dkt. 63). Mandate of the United State Court of Appeals was issued on
March 11, 2014, therefore, the stay is lifted and ruling on the motion is appropriate.
Mr. Strong argues that the costs should not be awarded on the basis that they are
excessive, and that he is indigent and unable to pay the costs sought. Specifically, Mr. Strong
contends that the cost associated with depositions, imaging and copying are excessive because
they exceed the rate for depositions established by the Judicial Conference of the United States,
and because only 176 pages of the 323 page deposition transcript were utilized in the motion for
summary judgment. First, Mr. Strong cites to Brown v. Compass Group in support of his
argument that the costs impermissibly exceeded the rates set by the Judicial Conference. No. 11

C 76789 (U.S. Dist. Ct., N.D. Ill, E.D. 2013). However, that case is from the Northern District
of Illinois, and that district’s local rules contain such a limitation, while Local Rule 54-1 in the
Southern District of Indiana does not. Second, the use of deposition testimony in a summary
judgment motion is not a prerequisite to find that it was necessary to take that deposition. See
Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 455 (7th Cir. 1998) (“[P]laintiff’s argument
that the depositions were used sparingly in defendant’s summary judgment motion and therefore
were not necessarily obtained for use in this case is . . . without merit.”). The proper inquiry is
whether the deposition was “reasonably necessary” to the case at the time it was taken, not the
extent to which it was used in a summary judgment motion or at trial. Id. Therefore, because
Mr. Strong has not shown that the depositions were not otherwise unnecessary, the Court finds
that these costs were not excessive or unreasonable.
Mr. Strong also argues that Delaware County’s motion should be denied because he is
indigent and unable to pay the costs now or in the future. Rule 54(d)(1) provides in pertinent
part, “[e]xcept when express provision therefore is made either in a statute of the United States
or in these rules, costs shall be allowed as of course to the prevailing party unless the court
otherwise directs.” Fed. R. Civ. P. 54(d)(1). The rule provides a presumption that the losing
party will pay costs, but grants the court discretion to direct otherwise. Rivera v. City of Chi.,
469 F.3d 631, 634 (7th Cir. 2006). A court may properly consider a litigant’s indigence in
determining whether to assign costs to the losing party. Id. “However, indigence does not
automatically excuse the losing party from paying the prevailing party’s costs[,]” and the
indigence exception “is a narrow one.” Id. at 635-36.
The threshold factual finding that this Court must make is whether Mr. Strong is
incapable of paying the costs at this time or in the future, and the burden is on Mr. Strong to

2

provide sufficient documentation to support such a finding. To support his claim, Mr. Strong
submitted an affidavit showing his assets, stating that his income was approximately $12,000.00
for 2012, and that he has four children for whom he is obligated to provide support and states
that he has no current prospects for greater earnings. Dkt. 59-3 at 1. Mr. Strong also included an
itemized list of his personal expenses. Id. at 4. Additionally, the Court notes that Mr. Strong
was allowed to proceed in forma pauperis in his appeal. (Dkt. 62). While the submitted
documentation provides information about Mr. Strong’s current ability to pay the costs, he does
not provide any information regarding his ability to pay in the future. Evidence was presented
during summary judgment that Mr. Strong obtained associate’s and bachelor’s degrees in 2009
and 2011, respectively, and Mr. Strong also indicates that he has been able to obtain intermittent
student teaching assignments, implying that he is pursuing an additional degree. Dkts. 31 at 3;
59-3 at 1. Mr. Strong may not have the current ability to pay, but he has not shown that his
circumstances will render him unable to pay in the future. Cf. Cross v. Roadway Express, No. 93
C 2584, 1994 WL 592168 (N.D. Ill. Oct. 26, 1994) (losing litigant’s chronic medical condition
rendered it impossible for him to pursue his former occupation). Because Mr. Strong has not met
his burden of showing that he has a future inability to pay, the Court cannot conclude that he is
indigent as intended under Seventh Circuit precedent.
The Court concludes that Mr. Strong has not met his burden of showing that the amounts
requested by Delaware County are unreasonable, or that indigence renders him unable to pay
court-imposed costs sometime in the future. Therefore, Delaware County’s Motion for Bill of
Costs in the amount of $4,006.81 (Dkt. 53) is GRANTED.

SO ORDERED.
05/09/2014
Date: ____________________
3

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
James D. Masur, II
ROBERT W. YORK & ASSOCIATES
[e-mail]
Rosemary L. Borek
STEPHENSON MOROW & SEMLER
[e-mail]

4