Bassett v. Credit Bureau Services, Inc. et al

Filing 280

MEMORANDUM AND ORDER - The Court finds the plaintiff has overcome any presumption in favor of taxation of costs. The plaintiff has shown there is a significant financial disparity and the plaintiff is without ability to pay. Based on its familia rity with the case, the Court finds the plaintiff pursued her action in good faith on complex and evolving legal issues. Insofar as the costs were incurred largely as a result of defendant's conduct, the Court finds an award of costs to the defendants as prevailing parties would be inequitable under the circumstances. Accordingly, in its discretion, the Court finds the clerk's taxation of costs should be reversed. Ordered by Senior Judge Joseph F. Bataillon. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KELLY M. BASSETT, individually and as heir
of James M. Bassett, on behalf of herself and
all other similarly situated,

8:16CV449

Plaintiff,
MEMORANDUM AND ORDER
vs.
CREDIT BUREAU SERVICES, INC., and C.
J. TIGHE,
Defendants.
This matter is before the Court on the plaintiff’s motion to reverse the Clerk’s
taxation of costs in this matter, Filing No. 275. Bassett moves for review and reversal of
the clerk’s taxation of costs on grounds that Defendants engaged in misconduct
throughout discovery, failed to respond to discovery fully and fairly, which resulted in
additional expense including written discovery, depositions, and expert witness fees. She
also contends the wide financial disparity between the parties and her inability to pay
justifies denial of costs. Further she contends denial of costs is justified because of the
wide financial disparity between the parties, the plaintiff’s inability to pay, and her good
faith pursuit of valid claims in this litigation.
I.

BACKGROUND
The Court is quite familiar with the facts of this case. In this action, the plaintiff

challenged the defendant’s practice of assessing interest without first obtaining a
judgment in alleged violation of Nebraska law. The complex class action case went to
trial and the plaintiff ultimately prevailed. Bassett was awarded a judgment, and an
injunction was ordered to stop the challenged practice. Filing No. 234, Memorandum and
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Order; Filing No. 235, Judgment; Filing No. 236, Injunction. The defendant appealed and
the judgment was vacated on the narrow but complex procedural issue of standing.
Bassett v. Credit Bureau Servs., Inc., 60 F.4th 1132, 1138 (8th Cir. 2023). The Eighth
Circuit did not reach the merits of Bassett’s claims. Id. at 1138 n.3.
Based on its familiarity with this action, the Court finds the plaintiff acted in good
faith in pursuit of valid claims on complex legal issues.

See, e.g., Filing No. 84,

Memorandum and Order on class certification; Filing No. 20, Memorandum and Order
denying plaintiff’s motion to dismiss; Filing No. 83, Memorandum and Order denying
defendants’ motion for summary judgment; Filing No. 194, Memorandum and Order
denying defendants’ motion for decertification. In another action presently pending in this
Court, the defendants are alleged to be continuing the practices challenged in this case.
See Richard D. Myers, Bankruptcy Trustee for the bankruptcy estate of Donna Jean
Lunsford v. Credit Bureau Services, Inc., and C. J. Tighe, No. 8:20-cv-141, Filing No. 131,
Amended Complaint (D. Neb. July 24, 2023).
The record shows the defendants were recalcitrant in providing discovery as to
their net worth. Filing No. 66-14, Ex. 7F, meet and confer letters; Filing No. 107, Order
on production of updated financial documents; Filing No. 144, text order on discovery
dispute; Filing No. 148, text order ordering defendants’ response.

The plaintiff

consequently had to take several depositions and retain a net worth expert. Filing No.
276 at 3–4, plaintiff’s brief. The defendants later stipulated to net worth. Filing No. 151,
stipulation. The plaintiff has shown that she lacks the ability to pay the costs. Filing No.
277 at 4, Index of Evid., Declaration of Kelly M. Bassett. The record also shows the
defendants hotly contested numerous issues at every stage of the litigation.

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II.

LAW
“A prevailing party is presumptively entitled to recover all of its costs.” In re

Derailment Cases, 417 F.3d 840, 844 (8th Cir. 2005). The losing party bears the burden
of overcoming the presumption that the prevailing party is entitled to costs, meaning that
the losing party must “suggest a rationale under which the district court's actions
constitute an abuse of discretion.” Janis v. Biesheuvel, 428 F.3d 795, 801 (8th Cir. 2005).
Fed. R. Civ. P. 54(d)(1) provides “[u]nless 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). 1 This is “a codification of the ‘presumption
that the prevailing party is entitled to costs.’” Greaser v. State, Dep't of Corr., 145 F.3d
979, 985 (8th Cir. 1998) (quoting Bathke v. Casey's Gen. Stores, Inc., 64 F.3d 340, 347
(8th Cir. 1995)).
Rule 54(d)(1) does not require courts to award costs to prevailing defendants.
Marx v. Gen. Revenue Corp., 568 U.S. 371, 387 n.9 (2013).

“District courts may

appropriately consider an FDCPA plaintiff's indigency in deciding whether to award
costs.”

Id.

Despite the “presumption in favor of a prevailing party,” courts retain

“substantial discretion in awarding costs” and costs may “be denied where there is some
misconduct or other action worthy of penalty on the part of the prevailing party.” Id.
However, the Court’s discretion is not limited to those circumstances.

Grisso v.

Massanari, 22 F. App'x 656, 657 (8th Cir. 2001) (noting authority for the proposition that
an award of costs may be reduced or denied because prevailing party obtained only

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Arguably, the FDCPA provides some statutory authority for awarding costs, 15 U.S.C. § 1692k(a)(3), but
the Court need not address that issue in light of its determination under Fed. R. Civ. P. 54. Marx v. Gen.
Revenue Corp., 568 U.S. 371, 387–88 (2013) (finding second sentence of § 1692k(a)(3) is not contrary to
Rule 54(d)(1), and, thus, does not displace a district court's discretion to award costs under the Rule).

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nominal victory, or because taxable costs of litigation were disproportionate to result
achieved). A disparity between the wealth of the parties may be considered in reversing
the clerk’s taxation of costs.

Luckert v. Dodge Cnty., No. 8:07CV5010, 2012 WL

13236930, at *1 (D. Neb. Oct. 4, 2012); see Poe v. John Deere Co., 695 F.2d 1103, 1108–
09 (8th Cir. 1982). In addition to the financial disparities between the parties, the good
faith of the losing party is a factor the court considers to ensure the equitable taxation of
costs. In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 463 (3d Cir. 2000).
III.

DISCUSSION
The Court finds the plaintiff has overcome any presumption in favor of taxation of

costs. The plaintiff has shown there is a significant financial disparity and the plaintiff is
without ability to pay. Based on its familiarity with the case, the Court finds the plaintiff
pursued her action in good faith on complex and evolving legal issues. Insofar as the
costs were incurred largely as a result of defendant’s conduct, the Court finds an award
of costs to the defendants as prevailing parties would be inequitable under the
circumstances. Accordingly, in its discretion, the Court finds the clerk’s taxation of costs
should be reversed.
Dated this 15th day of August, 2023.

BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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