Elsharkawy v. Chisago Lakes School District Board of Education et al.
Filing
219
ORDER denying 212 Motion for Review of Taxation of Costs (Written Opinion) Signed by Judge David S. Doty on 1/27/2025. (KAD)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CIVIL NO. 20-1971(DSD/ECW)
Faith Elsharkawy, as herself in her
individual capacity, and as Trustee
for the Next-of-Kin of J.L.E., Decedent,
Plaintiff,
ORDER
v.
Chisago Lakes School District Board
of Education, Independent School District
No. 2144, Chisago Lakes Area Schools
d/b/a Chisago Lakes Schools, Dave Ertl,
Jason Thompson, Carrie Hoffman,
Jerilyn Mattson, Angela Christenson,
Shira Ben-Heim, Leah Taylor, Carter Vogt,
Laura Gustafson, and Jane/John Does,
Defendants.
This matter is before the court upon the motion for review of
taxation of costs by plaintiff Faith Elsharkawy.
Based on a review
of the file, record, and proceedings herein, and for the following
reasons, the court denies the motion.
On October 2, 2024, the court granted summary judgment in
favor of defendants.
On November 22, 2024, the clerk of court
taxed $22,673.09 in costs in favor of defendants.
ECF No. 207.
Elsharkawy now moves for review of the cost judgment.
The court has “substantial discretion” in awarding costs to
a prevailing party under 28 U.S.C. § 1920 and Federal Rule of Civil
Procedure 54(d).
Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 363
(8th Cir. 1997).
Unless a federal statute, rules, or court order
provides otherwise, “costs - other than attorney’s fees - should
be allowed to the prevailing party.”
Fed. R. Civ. P. 54(d)(1).
Elsharkawy has the burden to show that the cost judgment “is
inequitable under the circumstances.”
Concord Boat Corp. v.
Brunswick Corp., 309 F.3d 494, 498 (8th Cir. 2002).
Elsharkawy argues that the cost judgment is inequitable in
several respects.
She first contends that she should not be forced
to pay the cost judgment because she is indigent.
In support of
this contention, she submitted an affidavit stating that she and
her husband are $320,000 in debt.
ECF No. 205-1, at 2.
She
further states that she and her husband collectively earn between
$4,050 and $7,050 per month.
Id. at 1.
Although she states that
her sole income is limited to disability payments, she does not
explain the basis for her disability or whether she is physically
or mentally incapable of work.
See id.
“Indigence is recognized as an appropriate justification for
denial of costs.”
Kaplan v. Mayo Clinic, No. 07cv3630, 2011 WL
3837095, at *2 (D. Minn. Aug. 29, 2011) (citing Rivera v. City of
Chicago, 469 F.3d 631, 635 (7th Cir. 2006); Poe v. John Deere Co.,
695 F.2d 1103, 1108 (8th Cir. 1982).
“The nonprevailing party
must be facing dire financial circumstances to avoid taxation of
2
costs.” Id.
“It is not just a matter of being unable to presently
pay the costs; it must also be shown that the litigant is not
likely to be able to pay the costs in the future.”
Id.
Although the court is sympathetic to Elsharkawy’s financial
condition, it does not find that she indigent in this context based
on her affidavit.
Simply put, she has failed to establish that
she will be unable to pay the costs as awarded in the future.
Cases in which the court held to the contrary are distinct.
See
Damgaard ex rel. I.L.D. v. McKennan, No. 13cv2192, 2016 WL 1718370,
at *1–2 (D. Minn. Apr. 29, 2016) (finding indigence when child
suffered from severe medical conditions and had no employment
prospects and mother provided “round-the-clock care,” could not
get a job, and relied on welfare); Thull v. Techtronic Indus. Co.,
No. 11cv2368, 2015 WL 1021316, at *2–3 (D. Minn. Mar. 9, 2015)
(finding indigence when plaintiff could perform only limited,
occasional work due to an accident; had no assets, savings, or
retirement
plan;
was
in
debt;
could
not
cover
basic
living
expenses; and was at risk of losing his home); Kaplan, 2011 WL
3837095, at *2 (finding indigence when plaintiff “lost his ability
to work due to medical procedures,” had to sell his personal
property, was in foreclosure, and was $550,000 in debt).
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Nor does the relative financial imbalance between plaintiff
and defendants lead the court to conclude that the imposition of
costs would be inequitable.
See In re Derailment Cases, 417 F.3d
840, 845 (8th Cir. 2005) (citing cases where costs were awarded in
instances of financial imbalance).
Elsharkawy
next
contends
that
the
costs
are
inequitable
because the case was of substantial public importance.
The court
has recognized that public importance can be a basis for denying
costs. Karsjens v. Harpstead, No. 11cv3659, 2024 WL 3791991, at *2
(D. Minn. Aug. 13, 2024).
Having presided over the case for four
years, the court cannot conclude that this case rises to the level
required to meet this standard, particularly given the outcome of
the case. Nor can the court find that awarding costs to defendants
will have a chilling effect on future civil rights plaintiffs.
This case was decided on the merits of the specific record before
it and was not framed as a lawsuit designed to promote change on
behalf of the public.
The court fails to see how the outcome here
will negatively affect or chill future litigants.
Elsharkawy also argues that costs should not be awarded
because the case was close, but ultimately unsuccessful.
having presided over the case, the court must disagree.
4
Again,
As tragic
as the circumstances underlying the case were, the legal issues
were not difficult to resolve in defendants’ favor.
See ECF No.
197.
Plaintiff’s
similarly
objections
unavailing.
depositions
of
fact
She
to
specific
argues
witnesses
deposition
that
the
Durkin,
costs
are
transcripts
of
Erickson/Severson,
Dufresne/Woodward, Carlin, Johnson, Vogt, and the District’s Rule
30(b)(6) designee (Jennissen) are not taxable because they were
not necessarily obtained for use “at trial.”
She also seeks to
exclude the expert depositions of Carney, Jones, and Ramer because
they were not cited in summary judgment papers.
As to the fact witnesses, Elsharkawy noticed the depositions
of Carlin, Severson, Erickson, Dufresne and Woodward (as designees
for defendant St. Croix Education District), and Vogt.
Most of
those transcripts were used in summary judgment briefing. She also
cited the depositions of Durkin, Jennissen, Johnson in opposing
summary judgment.
Given these facts, and the court’s familiarity
with the record, it cannot conclude that the depositions were not
necessarily obtained for use in “the case.”
1920(2).
See 28 U.S.C. §
The expert witness transcript fees are likewise taxable
as necessarily obtained for use in the case, particularly Ramer,
5
whom defendants moved to disqualify.
Elsharkawy
lastly
argues
that
defendants
should
not
be
awarded fees incurred in retrieving medical records from non-party
St.
Croix
Regional
Medical
Center.
Defendants
submitted
an
invoice for those fees in the amount of $647.30, excluding fees,
shipping costs, and tax.
See ECF No. 203-1, at 32.
The court
finds that those fees were necessarily obtained for use in the
case, see 28 U.S.C. § 1920(4), as the court reviewed them and
relied on them its decision to grant summary judgment. 1
Accordingly, IT IS HEREBY ORDERED that the motion for review
of taxation of costs [ECF No. 212] is denied.
Dated: January 27, 2025
s/David S. Doty
David S. Doty, Judge
United States District Court
The court will not consider the settlement offer submitted
by Elsharkawy. See Fed. R. Evid. 408. Even if the court were to
consider it, the offer would not have any bearing on this motion.
1
6
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