Modern Holdings, LLC et al v. Corning, Inc. et al

Filing 748

MEMORANDUM OPINION & ORDER: Plas ask that the Court defer taxing costs until after the appeals process, reduce or deny costs, and assess any costs to the Plas individually. R. 708 , 737 .For the reasons explained, Court DENIES Plas' 708 requests. Signed by Judge Gregory F. VanTatenhove on 08/07/2023. (DC) cc: COR

Case: 5:13-cv-00405-GFVT-EBA Doc #: 748 Filed: 08/08/23 Page: 1 of 8 - Page ID#:
30234

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
MODERN HOLDINGS, LLC, et al.,
Plaintiffs
v.
CORNING, INC., et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 5:13-cv-00405-GFVT
MEMORANDUM OPINION
&
ORDER

***** ***** ***** *****
This matter is before the Court on the Plaintiffs’ motion to deny the Defendants’ bill of
costs and for alternative relief. [R. 708.] The Plaintiffs ask that the Court defer taxing costs until
after the appeals process, reduce or deny costs, and assess any costs to the plaintiffs individually.
[R. 708; R. 737.] For the following reasons, the Plaintiffs’ requests are DENIED.
I
Plaintiffs Modern Holdings, Sellers and Sellers Company, Melvin Harris, Janet Mitchell,
Brenda Carter, Wanda Beasley, and Donna Smith asserted nuisance, negligent trespass, and
intentional trespass claims against Philips. [R. 700.] The jury returned a verdict for Philips. [R.
696.] Philips then asked the Court to order the Plaintiffs to pay its fees for transcripts obtained
for use in the case. [R. 704.]
The Plaintiffs soon after filed a motion requesting four forms of relief: (1) a stay of the
bill of costs until after the court resolves the motion for new trial, (2) leave for the Plaintiffs to
file evidence of their inability to pay costs, (3) a denial of the bill of costs, and (4) a stay of the
bill of costs pending appeal. [R. 708.] The Court stayed consideration of the bill of costs

Case: 5:13-cv-00405-GFVT-EBA Doc #: 748 Filed: 08/08/23 Page: 2 of 8 - Page ID#:
30235

pending resolution of the motion for new trial without deciding the Plaintiffs’ other requests. [R.
710.] After denying the motion for new trial, the Court granted the Plaintiffs leave to file
evidence of their inability to pay costs. [R. 734.] The Plaintiffs filed their evidence, Philips
responded, and the remaining issues in the Plaintiffs’ motion are ready for review. [R. 737; R.
743.]
II
A
The parties have each appealed decisions of this Court to the Sixth Circuit for review.
[R. 735; R. 739.] The Plaintiffs request the Court defer imposing any costs until the appellate
process concludes. [R. 737 at 8.] Courts routinely decline to stay the taxation of costs pending
appeal. See, e.g., Hyland v. HomeServices of Am., Inc., No. 3:05-CV-00612-TBR, 2013 U.S.
Dist. LEXIS 64722, at *7 (W.D. Ky. May 6, 2013).
Indeed, it “is more efficient to rule on costs now rather than delay the decision until the
appeal is resolved.” 1704 Farmington, LLC v. City of Memphis, No. 08-2171-STA-cgc, 2010
U.S. Dist. LEXIS 21497, at *5 (W.D. Tenn. Mar. 9, 2010). An order for costs constitutes a final
and appealable order from which a new appeal can be taken. Jackson-El v. Van Ochten, 927
F.2d 604 (6th Cir. 1991). If the Court stays consideration of costs while the appeal proceeds, the
Plaintiffs could file a second appeal and consume additional time and resources. Therefore, a
ruling on costs now avoids piecemeal litigation. Cooley v. Lincoln Elec. Co., 776 F. Supp. 2d
511, 575 (N.D. Ohio 2011) (finding that immediately ruling on costs preserved judicial
resources).

2

Case: 5:13-cv-00405-GFVT-EBA Doc #: 748 Filed: 08/08/23 Page: 3 of 8 - Page ID#:
30236

B
The Plaintiffs contend that the Court should deny Philips litigation costs. Unless rules
provide or a court orders otherwise, costs “should be allowed to the prevailing party.” Fed. R.
Civ. P. 54(d)(1). This creates a presumption in favor of awarding costs but allows denial of costs
at the discretion of the court. White & White, Inc. v. Am. Hosp. Supply Corp., 786 F.2d 728, 730
(6th Cir. 1986). The rule is a response to situations where “although a litigant was the successful
party, it would be inequitable under all the circumstances to put the burden of costs upon the
losing party.” Lichter Found., Inc. v. Welch, 269 F.2d 142, 146 (6th Cir. 1959). The nonprevailing party bears the burden of overcoming the presumption favoring an award of costs. Id.
Here, the Plaintiffs argue that the Court should deny or reduce costs to Philips because (1)
Philips used improper litigation tactics, (2) there is a financial disparity between the Plaintiffs
and Philips, (3) this was “a close case,” and (4) the Court should allocate some costs to future
cases. [R. 737.]
Litigation tactics. The Plaintiffs argue that costs should be denied because Philips used
improper litigation tactics. A court may determine that the “prevailing party should be penalized
for unnecessarily prolonging trial or for injecting unmeritorious issues. White & White, Inc., 786
F.2d at 730 (citing Nat’l Transformer Corp. v. Fr. Mfg. Co., 215 F.2d 343, 362 (6th Cir. 1954)).
The Plaintiffs allege that Philips’s tactics have been “nothing short of total warfare” because
Philips filed numerous motions, was uncooperative during discovery, and extensively objected to
the Plaintiffs’ proposed exhibits. [R. 737 at 3.]
True, this case has been lengthy. But even though Philips filed numerous dispositive
motions, the Court does not find that Philips unnecessarily prolonged trial or injected
unmeritorious issues. Many of the motions were granted at least in part. [See R. 110; R. 346; R.

3

Case: 5:13-cv-00405-GFVT-EBA Doc #: 748 Filed: 08/08/23 Page: 4 of 8 - Page ID#:
30237

431; R. 559; R. 576.] Instead, the number of claims and parties in the case primarily delayed its
conclusion. [See R. 311 (the Plaintiffs’ Fifth Amended Complaint pleading seven class-action
claims over the course of 134 pages).] The Plaintiffs also provide no citation to proof indicating
Philips complicated the discovery process. Accordingly, the Plaintiffs fail to show that Philips’s
costs should be reduced because it used improper litigation tactics.
Financial positions. The Plaintiffs contend that “this Court should consider the financial
disparity of the parties in considering Philips’ request for an award of costs.” [R. 737 at 5.]
However, courts should not consider “the ability of the prevailing party to pay his or her costs.”
White & White, Inc., 786 F.2d at 730. The Court may consider only whether the Plaintiffs are
indigent and whether this overcomes the presumption in favor of a cost award. See Sales v.
Marshall, 873 F.2d 115, 120 (6th Cir. 1989). A party is indigent if the party “is incapable of
paying the court-imposed costs at this time or in the future.” Tuggles v. Leroy-Somer, Inc., 328
F. Supp. 2d 840, 845 (W.D. Tenn. 2004). Courts also look at factors including severe debt,
inability to acquire a job due to disability, and having dependents. See Abdulsalaam v. Franklin
Cnty. Bd. of Comm’rs, No. 2:06-CV-413, 2012 U.S. Dist. LEXIS 40706 (S.D. Ohio Mar. 26,
2012); Robinson v. City of N. Olmstead, No. 193CV1203, 1997 U.S. Dist. LEXIS 17668 (N.D.
Ohio May 12, 1997).
The Plaintiffs offer affidavits declaring that some of their yearly incomes are $87,030;
$34,800; $65,760; $13,488; and $19,464 plus occasional hourly wages. [R. 737-1 at 1-2, 5-13.]
The same Plaintiffs represent that their yearly expenses are $86,940; $24,000; $48,000; $36,000;
and $18,000. Id. Ms. Mitchell, Ms. Beasley, and Ms. Smith state that they have no other assets.
Id. at 5, 9, 11. The affidavits all provide that the declarants cannot pay the full $29,922 cost
amount or $3,846—the cost amount when split between all plaintiffs. Id.

4

Case: 5:13-cv-00405-GFVT-EBA Doc #: 748 Filed: 08/08/23 Page: 5 of 8 - Page ID#:
30238

The Plaintiffs fail to show that they are “incapable of paying the court-imposed costs at
this time or in the future.” Tuggles, 328 F. Supp. 2d at 845. Using the incomes and expenses the
Plaintiffs provide, the declarant Plaintiffs receive $7,602 more than they expend in a year.
Moreover, Melvin Harris provided that he receives $30,000 a year and did not provide any
estimate about his expenses. Id. at 3. The Sellers, Mr. Harris, and Ms. Carter provide no
information about their assets. Id. at 1-4, 7. No plaintiff states that they have debt, dependents,
or that they are unable to work. Id. at 1-13. Mr. Harris and Ms. Carter also suggest that their
properties at issue in this litigation are held only as rental properties. Id. at 3, 7. Lastly, the
Plaintiffs admit that Modern Holdings holds sufficient resources to pay costs. [R. 737 at 5.]
Considering the Plaintiffs’ income, expenses, lack of other obligations, and admission
that Modern Holdings is not indigent, the Court does not find that the Plaintiffs are incapable of
paying Philips’s requested $29,922 in costs. See Frye v. Baptist Mem’l Hosp., Inc., 507 Fed.
App’x 506, 508 (6th Cir. 2012) (allowing taxation of $55,401.63 in costs where party earned
$75,000 per year and had approximately $3,190 in monthly expenses); LaShaunna Banks v.
Bosch Rexroth Corp., Civil Action No. 5: 12-345-DCR, 2014 U.S. Dist. LEXIS 122314, at *3
(E.D. Ky. Sep. 3, 2014) (not finding indigency where the plaintiff had zero income, was
dependent on the government for healthcare, and had a car as her only substantial asset); cf.
Abdulsalaam, 2012 U.S. Dist. LEXIS 40706 (finding three defendants indigent when they had
total debt of $165,000.00, limited income, and one of the defendants had a minor child).
Close case. The Plaintiffs ask the Court to deny costs because this was a close case. [R.
737 at 4.] A court may deny costs where the case was “close and difficult.” United States
Plywood Corp. v. Gen. Plywood Corp., 370 F.2d 500, 508 (6th Cir. 1966). However, courts may

5

Case: 5:13-cv-00405-GFVT-EBA Doc #: 748 Filed: 08/08/23 Page: 6 of 8 - Page ID#:
30239

also award costs even if they determine the case was close and difficult. McDonald v. Petree,
409 F.3d 724, 732 (6th Cir. 2005).
This was not a close and difficult case. The Sixth Circuit determines whether a case was
close by looking to “the difficulty of discerning the law of the case” and the difficulty in
analyzing the evidence. White & White, Inc., 786 F.2d at 732-33. Difficult cases have included
cases involving patent validity and complex antitrust issues. Id. In White, the antitrust trial
lasted 80 days, required 43 witnesses, produced 800 exhibits, and generated nearly 15,000 pages
of transcript. Id. In contrast, this trial lasted 12 days and the tort and statute of limitations issues
were far less complex than those in patent validity or antitrust cases. [See R. 696.] In fact, the
jury was able to return a verdict in under two hours. [R. 700.] Therefore, the Plaintiffs fail to
show that the Court should deny or reduce costs because the case was close and difficult.
Future cases. The Plaintiffs argue that the Court should reduce the cost award because
the costs charged for deposition transcripts will be helpful to Philips’s defense to the remaining
claims in this matter. [R. 737 at 6.] In the only case the Plaintiffs cite, the court apportioned
costs for transcripts among cases in which the litigants used the transcripts because the costs
were “incurred in connection with more than one proceeding.” Winter v. Novartis Pharm. Corp.,
739 F.3d 405, 411 (8th Cir. 2014). Here, the Plaintiffs do not allege that the transcripts were
used to defend against other claims. The Plaintiffs allege only that the transcripts might be at
some point in the future. [R. 737 at 6.] Therefore, the Plaintiffs do not show the transcripts were
“incurred in connection with more than one proceeding.” Winter, 739 F.3d at 411. What’s
more, the Plaintiffs do not establish that Philips even could use the transcripts in a future
proceeding. As Philips explains, the proof focused on the Plaintiffs’ knowledge and properties.
[R. 743 at 7.] Thus, each side would likely have to re-depose each side’s witnesses.

6

Case: 5:13-cv-00405-GFVT-EBA Doc #: 748 Filed: 08/08/23 Page: 7 of 8 - Page ID#:
30240

C
Where there are multiple non-prevailing parties, “courts presume that each nonprevailing party is jointly and severally liable, ‘unless it is clear that one or more of the losing
parties is responsible for a disproportionate share of the costs.’” Smith v. Joy Techs., Inc., No.
11-270-ART, 2015 U.S. Dist. LEXIS 12275, at *21 (E.D. Ky. Feb. 2, 2015) (quoting Anderson
v. Griffin, 397 F.3d 515, 523 (7th Cir. 2005)). Indeed, imposing individual liability “would be
inconsistent with the presumption embodied in” the rule “that a prevailing party is entitled to
recover all of its costs.” Singleton v. Select Specialty Hosp.-Lexington, Inc., Civil Action No.
5:07-230-JMH, 2009 U.S. Dist. LEXIS 48891, at *8 (E.D. Ky. June 10, 2009) (quoting Concord
Boat Corp. v. Brunswick Corp., 309 F.3d 494, 497 (8th Cir. 2002)). The burden is on the losing
party to persuade the Court to apportion the costs. See In re Paoli R.R. Yard PCB Litig., 221
F.3d 449, 469 (3d Cir. 2000).
The Plaintiffs do not allege that one of them is responsible for a disproportionate share of
the costs. Rather, they contend that the individual plaintiffs do not have sufficient resources to
pay their share of the costs, and the “net result will be to shift the entire bill onto the only
corporate plaintiff.” [R. 737 at 7.] In effect, the Plaintiffs’ request indicates an expectation that
they will not pay the taxed costs if the Court imposes individual liability. This is inconsistent
with the presumption embodied in the rule that “a prevailing party is entitled to recover all of its
costs.” Singleton, 2009 U.S. Dist. LEXIS 48891, at *8. Instead, the Plaintiffs should allocate the
costs among themselves and any party satisfying the judgment may seek contribution from the
others. See id. at *9.

7

Case: 5:13-cv-00405-GFVT-EBA Doc #: 748 Filed: 08/08/23 Page: 8 of 8 - Page ID#:
30241

III
Accordingly, and the Court being sufficiently advised, the Plaintiffs’ motion to deny the
Defendants’ bill of costs and for alternative relief [R. 708] is DENIED.

This the 7th day of August, 2023.

8