King et al v. Eastern Shore Water, LLC et al
Filing
73
MEMORANDUM OPINION AND ORDER directing that costs be apportioned equally between the four plaintiffs, Danielle S. King, Latasha Johnson, Marquito Purnell, and Linda Turner. Each plaintiff shall be liable for $933.45, or one quarter of costs. Signed by Magistrate Judge Susan K. Gauvey on 8/22/13. (c/m 8/28/13 bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Danielle S. King, et al.
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Plaintiffs
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v.
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CIVIL NO. SKG-11-01482
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Eastern Shore Water, LLC.,
et al.
Defendants
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MEMORANDUM OPINION AND ORDER
I.
Background
This case was decided on summary judgment by this Court on
July 31, 2012.
(ECF No. 35).1
On August 3, 2013, a bill of
costs in the amount of $4,158.15 was submitted.
(ECF No. 37).
On November 9, 2012, a Bill of Costs in the amount of $3,733.80
was entered.
(ECF No. 41).
On January 31, 2013, the Court
issued a Writ of Garnishment to J.C. Penny’s which was delivered
to plaintiff Latasha Johnson in February 2013.
(ECF No. 65, 1).
On April 8, 2013, Latasha Johnson filed an objection to the
Writ of Garnishment.
(ECF No. 64).
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On August 31, 2012, plaintiffs filed an appeal to the United States Court of
Appeals for the Fourth Circuit. (ECF No. 38). Plaintiffs’ counsel filed a
motion to withdraw as attorney for all plaintiffs on September 14, 2012.
(ECF No. 40). On November 13, 2012, the Fourth Circuit sent plaintiffs a
Rule 45 Notice of dismissal, to which there was no response. On December 3,
2012, the proceeding was dismissed by the Fourth Circuit for failure to
prosecute. (ECF No. 43).
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II.
Discussion
A. Statute of Limitations
Defendant notes that the Bill of Costs was entered on
November 9, 2012, and contends that plaintiff had five days
subsequent to this date to file a motion for review.
65, 2).
(ECF No.
Because plaintiff’s April 8, 2013 objection was well
outside of this window, defendant argues, it is untimely.
(Id.).
Under the United States District Court for the District of
Maryland’s Guidelines for Bills of Costs (“The Guidelines”), an
“opposing party must file any memorandum in opposition to any
costs within fourteen (14) days of service of the Bill of
Costs.”
The Guidelines at I(D); see also United States District
Court for the District of Maryland, Local Rules, 109.1(c).
Alternatively, Rule 54 of the Federal Rules of Civil Procedure
states that “[o]n motion served within the next 7 days, the
court may review the clerk's action.” FED. R. CIV. P. 54(d)(1).
In either case, the Court agrees that plaintiff’s
objection, filed months after costs were taxed by the clerk, was
untimely.
delay.
The defendant was not, however, prejudiced by this
As a result, and considering plaintiff’s pro se status,
the Court opts to consider the motion.
See Mitchell-Tracey v.
United Gen. Title Ins. Co., 839 F. Supp. 2d 821, 825 (D. Md.
2012)(A court “may consider untimely objections” under Rule 54);
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In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 459 (3d Cir.
2000)(“[C]ourts may, in their discretion, consider untimely
objections [under Rule 54].”).
B. Costs
In her motion, plaintiff argues that she “was not present
at the time of judgment,” which the Court assumes to be a
reference to the entry of the bill of costs on November 9, 2012.
(ECF No. 64, 1).
She also notes several perceived deficiencies
in her representation throughout the dispute.
(Id.).
Finally,
she notes that she is a single mother of four and does not have
sufficient funds to continue with the case, and asks that the
“fee . . . be split four ways with Danielle King, Marquito
Purnell and Glenda Shockley so I can pay my portion and move on
from this.”
(Id.).
In response, defendant argues that under
existing law Ms. Johnson is liable for the entire amount of
costs.
(ECF No. 65, 3).
Rule 54(d)(1), provides in pertinent part:
Unless a federal statute, these rules, or a court
order provides otherwise, costs—other than attorney’s
fees—should be allowed to the prevailing party.
FED. R. CIV. P. 54(d)(1).
The Fourth Circuit has determined that
the rule “creates the presumption that costs are to be awarded
to the prevailing party.”
Cherry v. Champion Int'l Corp., 186
F.3d 442, 446 (4th Cir. 1999).
A court “has the discretion to
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deny an award of costs,” however, so long as “good reason” for
the denial is articulated.
Ellis v. Grant Thornton LLP, 434
Fed. Appx. 232, 235 (4th Cir. 2011).
Courts may consider
several factors in determining whether a denial of costs is
appropriate: (1) misconduct by the prevailing party worthy of a
penalty; (2) the unsuccessful party's inability to pay the
costs; (3) the excessiveness of the costs in a particular case;
(4) the limited value of the prevailing party's victory; or (5)
the closeness and difficulty of the issues decided.
Cherry, 186
F.3d at 446.
Several district courts in the Fourth Circuit have relied
on the Cherry factors to deny a bill of costs.
In Levy v.
Lexington County, No. 3:03-3093-MBS, 2012 U.S. Dist. LEXIS
180782 (D.S.C. Dec. 20, 2012), the court denied costs because
the issues in the case were close, and because plaintiffs, with
yearly income of $44,598 and $109,647, but with outstanding debt
of $21,000, were of “modest means.”
Id. at *7.
Similarly, in
Musick v. Dorel Juvenile Group, Inc., No. 1:11CV00005, 2012 U.S.
Dist. LEXIS 17734 (W.D. Va. Feb. 13, 2012), the court noted that
the case was relatively close, and that “due to their limited
financial resources,” plaintiffs were unable to pay costs to
defendant.
Id.
Id. at *4.
As a result, costs were not awarded.
Finally, in Merritt v. Old Dominion Freight Line, Inc., No.
6:07-CV-00027, 2009 U.S. Dist. LEXIS 41872 (W.D. Va. May 15,
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2009), the court declined to award costs, primarily because
plaintiff “presented substantial evidence of her inability to
pay the costs claimed by the Defendant.”
Id. at *2.
Because of
her low income, and the fact plaintiff brought her case, which
was relatively close, in good faith, the court denied costs.
Id. at *2-3.2
As to the liability for costs, defendant is correct that
the presumption is that liability for costs is joint and
several.
The Guidelines specify that “where multiple prevailing
parties or multiple losing parties are represented by the same
counsel, it is assumed that they may be treated as a single
party for purposes of taxing costs.”
This rule is generally applied.
The Guidelines at I(E).
See Northeast Holdings, L.L.C.
v. Town of Riverhead, 244 F.R.D. 166, 168 (E.D.N.Y. 2007)(“As a
general rule, liability for costs is to be shared jointly and
severally when there are multiple parties on the losing
side.”)(citing cases).
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These decisions are generally in accord with authorities outside of the
Fourth Circuit. See, e.g., Paoli, 221 F.3d at 464 (“[W]e hold that if a
losing party is indigent or unable to pay the full measure of costs, a
district court may, but need not automatically, exempt the losing party from
paying costs.”); Chapman v. AI Transp., 229 F.3d 1012, 1039 (11th Cir.
2000)(“ We hold that a non-prevailing party's financial status is a factor
that a district court may, but need not, consider in its award of costs
pursuant to Rule 54(d).”); 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.”)(internal citations and quotations omitted).
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Courts have some discretion, however, over allocating costs
as is deemed appropriate.
See 10 CHARLES ALAN WRIGHT, ARTHUR R.
MILLER, & MARY KAY KANE, Federal Practice and Procedure § 2668
(1998) (discussing discretionary character of Federal Rule of
Civil Procedure 54 and power of courts to apportion costs).
The
Third Circuit has held that “a district court, in exercising its
equitable discretion, may apportion costs between the prevailing
and non-prevailing parties as it sees fit.”
In re Paoli R.R.
Yard PCB Litig., 221 F.3d 449, 469 (3d Cir. 2000); see also
Georgia Asso. of Retarded Citizens v. McDaniel, 855 F.2d 794,
800 (11th Cir. 1988)(“If equitable considerations militate[]
against an award of costs vis-à-vis either losing party, they
[are] due to be addressed through the district court’s
discretionary power to deny or apportion costs.”).
This
discretion includes the ability to apportion costs between
plaintiffs: in Blevins v. Heilig-Meyers Corp., 184 F.R.D. 663,
669 (M.D. Ala. 1999), the court found that because one plaintiff
had fewer financial resources than another, and had brought
fewer claims, she should only pay 30% of the costs.
Id.
It is clear here that the majority of the Cherry factors
weigh in defendant’s favor.
There was no misconduct on its
part; the costs of $3,733.80 are not excessive; its victory was
not of limited value; and the issues in the case were not
particularly close.
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Plaintiff has, however, made a clear showing that she is of
modest means.
She has submitted a financial affidavit to the
Court demonstrating that she earns $25,200 a year after taxes,
which she uses to support four dependent children.
1).
(ECF No. 72,
The costs due in this case therefore constitute
approximately 15% of her already low annual income.
As such,
the Court finds that, considering her financial situation, she
is unable to pay the full costs taxed by the clerk.
As the majority of the Cherry factors weigh on the side of
defendant, however, this is not an appropriate case in which to
deny costs altogether.
As such, the Court finds that the most
equitable solution is a division of costs equally between
plaintiffs.
Each plaintiff shall be liable for $933.45, or one
quarter of costs.
Plaintiff has indicated that this amount is
within her means, and the remedy also preserves defendant’s full
entitlement to costs.
Conclusion
For the reasons set forth above, the Court orders that costs
be apportioned equally between the four plaintiffs, Danielle S.
King, Latasha Johnson, Marquito Purnell, and Linda Turner.
Each
plaintiff shall be liable for $933.45, or one quarter of costs.
Date:
8/22/13_______
/s/
Susan K. Gauvey
United States Magistrate Judge
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