Sevy v. Barach et al
Filing
129
OPINION and ORDER Granting in Part Barach's Motion to Review the Costs Taxed by the Clerk 127 . Signed by District Judge Laurie J. Michelson. (EPar)
Case 2:17-cv-13789-LJM-APP ECF No. 129, PageID.3779 Filed 11/08/22 Page 1 of 5
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTHONY SEVY,
Plaintiff,
Case No. 17-13789
Honorable Laurie J. Michelson
v.
PHILIP BARACH,
Defendant.
OPINION AND ORDER GRANTING IN PART BARACH’S
MOTION TO REVIEW THE COSTS TAXED BY THE CLERK [127]
In November 2017, Anthony Sevy sued court security officers Philip Barach
and Harold Marshall under 42 U.S.C. § 1983 following a take-down at the state
courthouse in Royal Oak, Michigan. Following years of discovery, dispositive motion
practice, an interlocutory appeal to the Sixth Circuit, a trial, and extensive post-trial
motion practice, this five-year-old case is wrapping up. (See ECF Nos. 55, 65, 110,
121.)
Just one issue remains: the costs taxed by the clerk. (ECF Nos. 125–127.)
Helpfully, the Court already issued an extensive opinion on costs and the effect that
Defendants’ early offer of judgment under Federal Rule of Civil Procedure 68 had on
the parties’ liability for costs. See Sevy v. Barach, No. 17-13789, 2022 WL 4234951,
at *13 (E.D. Mich. Sept. 14, 2022). Specifically, the Court held that “Barach is directed
to compensate Sevy for . . . such pre-offer costs as the taxation clerk may award. Sevy
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is directed to compensate Barach for such post-offer costs as the taxation clerk may
award.” Id.
Since that time, the clerk taxed $2,846.27 against Barach and $2,656.20
against Sevy. (ECF Nos. 125, 126.) Understandably, the clerk did not account for Rule
68 when awarding costs.
Barach has now filed a motion challenging the clerk’s taxation of costs. (ECF
No. 127.) Specifically, he argues (1) that Sevy should only get $614.50 in costs, as
these were the only costs incurred before the offer of judgment, and (2) that Rule 68
entitles Barach to all post-offer costs, not just the costs awarded by the clerk under
Federal Rule of Civil Procedure 54(d)(1). (Id. at PageID.3715–3717.)
For the reasons that follow, the Court will grant in part and deny in part
Barach’s motion.
Start with Sevy’s costs. As explained, the Court already found that Sevy is
entitled to only “such pre-offer [of judgment] costs as the taxation clerk may award.”
Sevy, 2022 WL 4234951, at *13. Despite this clear direction, Barach reports that Sevy
has maintained that he is “entitled to all costs,” including his post-offer costs. (ECF
No. 127, PageID.3709.)
In response, Sevy claims to have “cured” this issue by submitting an amended
bill of costs that only includes pre-offer costs. (ECF No. 128, PageID.3731.) While the
Court appreciates Sevy’s acknowledgement of its prior ruling, the submission of the
amended bill of costs is improper for two reasons. See Fed. R. Civ. P. 54(d)(1) (“The
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clerk may tax costs on 14 days’ notice. On motion served within the next 7 days, the
court may review the clerk's action.). For one, “motions filed within responses are
disfavored” in this district as they violate the Court’s electronic filing policies and
procedures. See Coles v. Scion Steel, Inc., No. 20-12606, 2021 WL 4785927, at *9, n.4
(E.D. Mich. June 15, 2021) (collecting cases); E.D. Mich. Elec. Filing Pol’y and Proc.
R. 5(f) (“Motions must not be combined with any other stand-alone document. . . . A
counter-motion must not be combined with a response or reply.”). For two, even if the
Court were inclined to consider the relief requested in the response brief, the request
is untimely. (Compare ECF Nos. 125–126 (costs taxed on Oct. 17, 2022) with ECF No.
128 (Sevy’s response filed Nov. 2, 2022).) So the Court will not consider the amended
bill of costs or Sevy’s new arguments which are not responsive to Barach’s motion.
In any case, the parties now agree that Sevy is only entitled to costs incurred
prior to Defendants’ officer of judgment. And the only costs taxed by the clerk and
incurred by February 5, 2018 were the filing fee and service of the complaint, which
totals $614.50. (ECF No. 125, PageID.3702; ECF No. 123-1, PageID.3550, 3553.) So
the Court agrees with Barach that Sevy is only entitled to $614.50 in costs.
Next, Barach claims that he is entitled to the full amount of costs submitted to
the clerk under Rule 68 (about $32,000), rather than the costs that the clerk actually
awarded under Rule 54(d)(1) ($2,656.20). (ECF No. 127, PageID.3717.) Barach argues
that the “Court’s Bill of Costs Handbook states ‘Costs will be taxed by the clerk in
accordance with Fed. R. Civ. P. 54(d)(1).’ Here, though, costs must be taxed under
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Fed. R. Civ. P. 68(d), which provides that [upon] an unsuccessful reject[ion] of a Rule
68 offer, ‘offeree must pay the costs incurred after the offer was made.’ Fed. R. Civ.
P. 68(d).” (ECF No. 127, PageID.3716.) In other words. Barach believes that Rule
68(d) permits him to collect all “reasonable” post-offer costs, rather than just the postoffer costs available under Rule 54. (ECF No. 127, PageID.3717.)
The Court disagrees. The Supreme Court has explained that Rule 68 modifies
Rule 54, suggesting that “costs” has the same meaning in both rules. See Delta Air
Lines, Inc. v. Aug., 450 U.S. 346, 351 (1981) (considering various ways Rule 68 might
“alter” Rule 54 before choosing one option); Marek v. Chesny, 473 U.S. 1, 19 n.8 (1985)
(Brennan, J., dissenting) (citing Delta Air Lines and noting that “Rule 68 modifies the
general cost-shifting provisions set forth in Rule 54(d)”). And other authority suggests
that the term “costs” has the same meaning under Rule 54 and Rule 68. See 12
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3006 (3d
ed. 2022) (“The costs recoverable under Rule 68 are defined in the same way costs are
customarily defined; the rule does not provide an independent warrant for recovery
of other costs.”); Hedru v. Metro-N. Commuter R.R., 433 F. Supp. 2d 358, 360
(S.D.N.Y. 2006) (“[T]he costs included in Rule 68 do not include any cost not
authorized under Rule 54[.]”); Boisson v. Banian Ltd., 221 F.R.D. 378, 380 (E.D.N.Y.
2004) (“It is clear that the costs recoverable pursuant to Rule 54 are included within
the Rule 68 definition of costs.”). And Barach provides no authority to the contrary.
See Stokes v. City of Montgomery, Ala., 157 F.R.D. 514, 519 (M.D. Ala. 1994) (setting
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out the Eleventh Circuit’s standard for costs and citing cases which did not involve
Rule 68).
So Barach is limited to recovering the costs available under Rule 54. And
Barach did not dispute the clerk’s calculation of costs under this rule. (See ECF No.
127.) So the Court finds that Barach is entitled only to the $2,656.20 awarded by the
clerk for his post-offer costs. (ECF No. 126.)
For the reasons stated above, Barach’s motion to review the costs taxed by the
clerk is GRANTED IN PART and DENIED IN PART. (ECF No. 127.) The Court finds
that Sevy is entitled to $614.50 in costs and that Barach is entitled to $2,656.20 in
costs.
SO ORDERED.
Dated: November 8, 2022
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
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