Vogel v. E.D. Bullard Company

Filing 161

MEMORANDUM OPINION & ORDER: It is ordered that the 157 BILL OF COSTS is DENIED. Signed by Judge Joseph M. Hood on 3/10/2015.(SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
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JAMES D. VOGEL,
Plaintiff,

v.
E.D. BULLARD COMPANY,

Defendant.
**
This
Costs

[DE

matter
157].

is

**

MEMORANDUM OPINION AND ORDER

**

before

Defendant

Civil Action No.
5:12-CV-00011-JMH-REW

**

the

**
on

filed

has

Court

a

Plaintiff’s
Response

Bill

stating

of
its

opposition [DE 159], and Plaintiff has filed a Reply [DE 160] in
further support of his request for relief. Accordingly, this
matter is ripe for review. Having reviewed the record and being
otherwise sufficiently advised, Plaintiff’s request for relief
is denied, and the parties shall each bear their own costs.
As it did the last time it considered a Bill of Costs in
this

matter,

the

Court

considers

whether

Plaintiff

“prevailing party,” entitled to an award of costs.
of

Civil

Procedure

54(d)(1)

states

that

costs

is

a

Federal Rule
other

than

attorney’s fees should be allowed to the prevailing party. A
party is the prevailing party where (1) it receives “at least
some relief on the merits of [its] claim” and (2) there is a
1

“judicially sanctioned change in the legal relationship of the
parties.” Maker's Mark Distillery, Inc. v. Diageo N. Am., Inc.,
679 F.3d 410, 425 (6th Cir. 2012) (citing Buckhannon Board and
Care Home v. W. Va. Dep’t of Health and Human Res., 532 U.S.
598, 603-605 (2001)).

When the results of a case are mixed,

however,

have

both

parties

“prevailed.” 1

Mills

v.

City

of

Barbourville, 389 F.3d 568, 581 (6th Cir. 2004) (concluding that
when

both

plaintiff

and

defendants

prevailed

in

part,

the

defendants could not be considered a “prevailing party” and each
party should bear its own costs); Lynch v. Sease, CIV.A. 6:03479-DCR, 2007 WL 2844962, *2 (E.D. Ky. Sept. 28, 2007) (holding

1

Plaintiff relies on McQueary v. Conway, 614 F. 3d 591, 603
(6th Cir. 2010) (quoting Texas State Teachers Ass’n v. Garland
Indep. Sch. Dist., 489 U.S. 782, 790-91 (1989)), for the
proposition that “[a] plaintiff crosses the threshold to
‘prevailing party’ status by succeeding on a single claim, even
if he loses on several others and even if that limited success
does not grant him the ‘primary relief’ he sought.” McQuery is
not instructive in evaluating his request for costs under Fed.
R. Civ. P. 54(d)(1). Rather, McQuery addressed the question of
whether an individual who obtained a preliminary injunction
enjoining the enforcement of a law placing limits on protests at
military funeral was a “prevailing party” in a civil rights
action under 42 U.S.C. § 1983 and could obtain attorney’s fees
under 42 U.S.C. § 1988(b) when the preliminary injunction was
the only relief that he received because the state legislature
repealed the relevant portions of the statute and rendered his §
1983 action moot.
This is distinct from the situation in the
matter before the Court where each party prevailed on claims
that were ultimately the subject of a judgment.
2

that each party would bear its own costs and expenses when both
prevailed on certain claims).
Both parties in this case received at least some relief on
the merits of a claim, and, thus, both achieved a change in the
legal relationship of the parties. Six causes of action were
included in Plaintiff’s Complaint.

On April 14, 2014, judgment

was entered in favor of Plaintiff with respect to his sixth
claim, seeking a declaratory judgment concerning a signing bonus
and

Defendant’s

counterclaim

seeking

relief

under

the

same

agreement, and judgment was entered in favor of Defendant on
Plaintiff’s five remaining claims.

[DE 142].

On appeal, the

United States Court of Appeals for the Sixth Circuit concluded
that

this

Court

Plaintiff’s

had

claim

erred

for

with

breach

respect

of

to

contract

the

dismiss

related

to

of
his

temporary living expenses and remanded this matter for further
proceedings.

Ultimately, the parties entered into a Stipulation

for Entry of Judgment on Plaintiff’s Breach of Contract Claim
for Temporary Living Expenses [DE 153], and this Court entered a
judgment

in

favor

of

Plaintiff

and

against

Defendant

in

the

amount of $4,638.10 on that claim [DE 156].
Thus, Plaintiff has obtained a judgment in his favor on two
of

his

claims

as

well

as

Defendant’s

counterclaim,

but

a

judgment in favor of Defendant remains in full force and effect
3

with respect to four of Plaintiff’s claims.

Thus, neither party

is the single “prevailing party” for purposes of awarding costs,
and each party must bear its own costs due to their shared
“prevailing party” status.
Accordingly,

IT

IS

ORDERED

that

the

request

found in Plaintiff’s Bill of Costs [DE 157] is DENIED.
Dated this 10th day of March, 2015.

4

for

relief