FRIGO v. BRIGHTHOUSE NETWORKS

Filing 70

ORDER denying Defendant's 67 Motion for Bill of Costs (see Order). Copy via US Mail to Plaintiff. Signed by Judge Jane Magnus-Stinson on 12/5/2013. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
FRED R. FRIGO,
Plaintiff,
vs.
BRIGHTHOUSE NETWORKS,
Defendant.

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1:12-cv-00674-JMS-DML

ORDER
Presently pending before the Court is Defendant Brighthouse Networks’ (“Brighthouse”)1
Motion for Bill of Costs. [Dkt. 67.] Plaintiff Fred Frigo, proceeding pro se, objects to Brighthouse’s motion, arguing that the Court should deny costs due to his indigence. [Dkt. 68.] For
the reasons explained, the Court DENIES Brighthouse’s motion.
I.
STANDARD OF REVIEW
The Court granted summary judgment in favor of Brighthouse on Mr. Frigo’s claims
brought pursuant to Age Discrimination in Employment Act, Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 1981, and the Americans with Disabilities Act. [Dkt. 65.] Under Federal
Rule of Civil Procedure 54(d), the Court has discretion to tax the costs enumerated in 28 U.S.C.
§ 1920 against the losing party in an action—here, Mr. Frigo—and a “strong presumption” exists
that the Court will do so. Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 945 (7th Cir.
1997) (citation omitted). The losing party “bears the burden of an affirmative showing that the

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Defendant states that it is properly called Advance/Newhouse Partnership rather than Brighthouse Networks. [Dkt. 67 at 1.] Although there is evidence in the record to this effect, [dkt. 356 at 2], because suit was brought against Brighthouse Networks, and because whether Plaintiff
sued the proper party is not at issue, the Court will refer to Defendant as Brighthouse.
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taxed costs are not appropriate.” Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th
Cir. 2005).
II.
DISCUSSION
Brighthouse seeks $990.89 in costs as the prevailing party for deposition and photocopying fees. [Dkt. 67 at 1, 3.] Mr. Frigo does not object to any of the specific costs requested in
Brighthouse’s motion, but, instead, contends that the Court should deny the motion due to his
indigence. [Dkt. 68 at 1.] Specifically, Mr. Frigo points to the fact that his income is $467.62
per month and supplemented by bread sales totaling no more than $60 per week. [Id.] Brighthouse declined to file a reply brief disputing Mr. Frigo’s claims of indigence.
The Seventh Circuit has acknowledged that the Court may undertake “a pragmatic exercise of discretion to deny or reduce a costs order if the losing party is indigent.” Mother & Father v. Cassidy, 338 F.3d 704, 708 (7th Cir. 2003); see McGill v. Faulkner, 18 F.3d 456, 459 (7th
Cir. 1994) (“‘[T]he inability to pay is a proper factor to be considered in granting or denying taxable costs’ and the presumption that costs are to be awarded to the prevailing party ‘may be
overcome by a showing of indigency.’”) (quoting Badillo v. Central Steel & Wire Co., 717 F.2d
1160, 1165 (7th Cir. 1983)). This exercise requires the Court to first “make a threshold factual
finding that the losing party is ‘incapable of paying the court-imposed costs at this time or in the
future.’” Rivera v. City of Chicago, 469 F.3d 631, 635 (7th Cir. 2006) (quoting McGill, 18 F.3d
at 459). Second, the 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,” although “[n]o one factor is determinative.” Id.
The Court finds that Mr. Frigo has made a threshold showing of indigency. Mr. Frigo
has an income of just over $700 per month, and there is no indication that this is likely to change
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in the future. An individual such as Mr. Frigo with such a small income is incapable of paying
the nearly $1,000 in costs sought either now or in the future. The Court has also considered the
other factors and concludes that, overall, they favor not imposing costs against Mr. Frigo. It is
true that the issues presented in this case were not especially difficult. However, the costs requested are high for a person of Mr. Frigo’s income, and Mr. Frigo pursued his claims in good
faith. Accordingly, due to Mr. Frigo’s indigency, the imposition of costs is inappropriate.
III.
CONCLUSION
For the foregoing reasons, the Court DENIES Brighthouse’s Motion for Bill of Costs.
[Dkt. 67.]
12/05/2013
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via U.S. Mail:
FRED R. FRIGO
2389 N. County Road 130 E.
Frankfort, IN 46041

Distribution via ECF only:
Melissa K. Fuller
JACKSON LEWIS LLP
[e-mail]
Craig W. Wiley
JACKSON LEWIS LLP - Indianapolis
[e-mail]

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