Stallins v. City of Princeton et al

Filing 111

MEMORANDUM OPINION & ORDER by Senior Judge Thomas B. Russell on 4/23/2015; re 108 Bill of Costs filed by Timothy Merrick, City of Princeton Police Department, City of Princeton ( Brief due by 5/4/2015.), Schedules re: 108 Bill of Costs :( Responses due by 5/19/2015, Replies due by 5/26/2015.)cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:13-CV-00157
DENNIS STALLINS,

Plaintiff

v.
CITY OF PRINCETON,
CITY OF PRINCETON POLICE DEPARTMENT AND
TIMOTHY MERRICK,

Defendants

MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon Defendant’s bill of costs, (Docket No. 108), to
which the Plaintiff has objected (Docket No. 109). Fully briefed, this matter stands ripe for
adjudication. For the following reasons, the Court GRANTS in part and DENIES in part the
Plaintiff’s objections to the bill of costs.
BACKGROUND
Following a two day trial, the jury found in favor of the Defendant. (Docket No. 104).
The Defendant timely submitted his bill of costs, claiming expenses totaling $3,994.44. (Docket
No. 108). The Plaintiff objected to the bill of costs in its entirety due to his inability to pay, as
well as specifically objecting to: 1) witness fees for Jon Pettit and Leigh Ann Merrick as they did
not testify; 2) fees for printed or electronically recorded transcripts; and 3) fees incurred in
transferring the case to federal court.
STANDARD
Federal Rule of Civil Procedure 54(d)(1) provides that a prevailing party is generally
allowed to recover costs, other than attorneys' fees. 28 U.S.C. § 1920 specifies what costs may be
taxed. Any costs taxed by the Court must be allowed under § 1920 and must be reasonable and

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necessary in amount. See BDT Prods., Inc. v. Lexmark Int'l, Inc., 405 F.3d 415, 417 (6th Cir.
2005), abrogated on other grounds by Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997
(2012). There is a presumption in favor of awarding costs to the prevailing party in accordance
with Rule 54(d). Singleton v. Smith, 241 F.3d 534, 539 (6th Cir. 2001); Ford v. FedEx Supply
Chain Servs., Inc., 2009 WL 1585849, at *1 (W.D. Tenn. June 3, 2009). The party objecting to
the taxation bears the burden of persuading the Court that taxation is improper. BDT Prods., 405
F.3d at 420; Cooley v. Lincoln Elec. Co., 776 F. Supp. 2d 511, 574 (N.D. Ohio 2011).
1)

Witness fees for Jon Pettit and Leigh Ann Merrick

The costs for Jon Pettit and Leigh Ann Merrick are not taxable because they did not
testify at trial. There is generally a presumption that “no fee may be taxed for someone who
comes to the courthouse but does not testify at the trial.” Smith v. Joy Technologies, Inc., 2015
WL 428115 (E.D. Ky. Feb. 2, 2015); Charles Alan Wright & Arthur R. Miller, 10 Federal
Practice and Procedure § 2678 (3d ed.). The defendant offers no reason to depart from that
presumption. See Smith, 2015 WL 428115. Thus, the Court will deduct $53.76 for Jon Pettit
and $121.76 for Leigh Ann Merrick from the bill of costs.
2)

Fee to move case to federal court

Plaintiff argues that the $400 fee paid by Defendant to remove this case to federal court
should be deducted from the bill of costs. The Plaintiff argues that, “[i]t was the decision of the
Defendants to move the case to Federal Court and they paid four hundred dollars ($400.00) to do
this. The Plaintiff never filed and never had any intention of filing the case in Federal Court. All
claims of cost in Federal Court should be denied.” (Docket No. 109).
Pursuant to 28 U.S.C. § 1920(1), fees of the clerk are taxable. The Plaintiff fails to
overcome the presumption that this cost should be awarded in this matter. There is nothing in the

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federal statute that prohibits the award of removal filing fees or treats the award of such fees
differently because the removal is “voluntary.” See Healy ex rel. Healy v. Sears, Roebuck & Co.,
2009 WL 2392394 (E.D. Mich. Aug. 3, 2009).

Therefore, this portion of the Plaintiff’s

objections will be denied.
3)

Fees for transcripts and depositions

The Plaintiff argues that the fees for transcripts and depositions “in the amount of three
thousand two hundred thirty dollars and sixty cents ($3,230.60) that was not paid by any parties
is an arbitrary figure not supported by any accounting or any evidence to justify the amount.”
(Docket No. 109). However, the Defendant submitted receipts justifying these costs. (Docket
No. 108-1). Therefore, this portion of the Plaintiff’s objections will be denied as well.
4) Indigency
Finally, the Plaintiff alleges that he “does not have any money to pay the cost.” (Docket
No. 109). The briefing from the parties is not sufficient to determine whether the Plaintiffs'
indigency should prevent taxation of costs. District courts must determine whether a plaintiff
claiming indigency has the “capacity to pay the costs assessed.” Sales v. Marshall, 873 F.2d 115,
120 (6th Cir. 1989); see also In re Ruben, 825 F.2d 977, 987 (6th Cir. 1987) (“[D]istrict judges
are encouraged to consider the question of indigency fully for the record.”). While indigency is a
relevant factor, it is not “an automatic basis for denying taxation of costs against an unsuccessful
litigant.” Singleton v.. Smith, 241 F.3d 534, 539 (6th Cir. 2001). The Defendant requests
$3,994.44 in costs. As discussed above, certain costs are not taxable, which results in a total of
$3,818.92 in costs.

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The Court will order the Plaintiff to rebrief the issue of indigency. The Plaintiff must
explain his monthly income, what monthly expenses he incurs, his assets, and any other relevant
information. See Smith v. Joy Technologies, Inc., 2015 WL 428115 (E.D. Ky. Feb. 2, 2015).
CONCLUSION
Subtracting non-taxable amounts from the Defendant’s costs equals $3,818.92. Because
the Plaintiffs' briefing did not adequately discuss the Plaintiffs' indigency, the parties must
rebrief that issue.
Accordingly, it is ORDERED that:
1)

By Monday, May 4, 2015, the Plaintiff SHALL FILE a brief on the Plaintiffs'

indigency.
2)

By Monday, May 19, 2015, the Defendant SHALL RESPOND.

3)

By Tuesday, May 26, 2015, the Plaintiff MAY REPLY.

IT IS SO ORDERED.

cc: counsel

April 23, 2015

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