Terek et al v. Finkbiner et al

Filing 88

Memorandum Opinion and Order 85 granting Plaintiff's motion for costs and orders Defendants to pay Plaintiff $859.70. Court denies Plaintiff's motion for costs for Rose Witt's deposition and denies Plaintiff's motion for pre-judgment interest. Magistrate Judge James R. Knepp, II on 6/2/16. (A,P)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 3:14 CV 1391

JEAN A. TEREK,
Plaintiff,
v.
WINFIELD J. FINKBINER, et al.,

MEMORANDUM OPINION AND ORDER
ON PLAINTIFF’S MOTION FOR COSTS
AND PREJUDGMENT INTEREST
MAGISTRATE JUDGE JAMES R. KNEPP II

Defendants.
INTRODUCTION
In September 2015, the Court held a trial involving Plaintiff Jean Terek (“Plaintiff”) and
Defendant Winfield Finkbiner, who was driving a semi-truck for Defendant Trans-United, Inc.
(collectively, “Defendants”). The semi-truck Finkbiner was driving struck the passenger vehicle
in which Plaintiff was traveling. Prior to the trial, liability was admitted and the trial proceeded
on the issue of damages only. At trial, Plaintiff was awarded $254,528.11 in compensatory
damages. (Doc. 84). On October 8, 2015, Plaintiff requested costs and prejudgment interest.
(Doc. 85). The Defendants opposed the motion. (Doc. 87).
ANALYSIS
Costs
Under Fed.R. Civ. P. 54(d), “costs—other than attorney’s fees—should be allowed to the
prevailing party.” While there is a presumption in favor of awarding costs, a district court is
allowed discretion in denying costs. White & White, Inc. v. American Hosp. Supply Corp., 786
F.2d 729 (6th Cir. 1986). Here, Plaintiff requested reimbursement for all court costs and the costs
for taking two depositions, Dr. Peter Gerszten and Rose Witt. (Doc. 85). The Defendants do not
oppose the award of costs for the taking of Dr. Gerszten’s deposition but challenge those

associated with the taking of Rose Witt’s deposition, including reimbursement for Plaintiff’s
attorney’s mileage costs. (Doc. 87). Defendants also do not oppose the award for the filing fee
but request that Plaintiff only receive $133.34, presumably (though unexplained by Defendants)
this reduced award is attributable to Plaintiff’s lack of success on her other claims.
First, as it is unopposed, the Court awards the cost of taking Dr. Gerzsten’s deposition to
Plaintiff; in the amount of $459.70. Second, while Plaintiff was not successful on all of her
claims, there is no evidence that Plaintiff brought these claims for an improper purpose or in bad
faith. See White, 786 F.2d at 730 (citing Coyne-Delany v. Capital Development Bd. of Illinois,
717 F.2d 385, 390 (7th Cir. 1983)) (good faith of a losing party is a relevant factor in
determining whether to award or deny costs). Further, these claims were dismissed after a partial
summary judgment order was issued by the Court less than a week before trial. (Doc. 80). Thus,
the Court also awards Plaintiff the full filing fee of $400.00.
As to Ms. Witt’s deposition, the Defendants challenge the award of costs because they
allege her deposition only went to proving liability which had already been admitted and was
thus, unnecessary. (Doc. 87). Plaintiff only argued that Ms. Witt’s deposition was necessary
because Defendants refused to admit liability. (Doc. 85). However, liability for the accident was
not in question as early as October 2014 when Defendants returned admissions to Plaintiff’s
counsel. (See Doc. 87-1). Multiple times throughout those admissions, Defendants admit that
Finkbiner’s semi-truck struck Plaintiff’s vehicle while changing lanes. (Doc. 87-1). Because
liability was not at issue, and had already been admitted, Plaintiff’s argument is not well-taken.
The Court denies Plaintiff’s request for costs totaling $629.30 consisting of the reporting costs
for the deposition and Plaintiff’s counsel’s mileage costs.

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Pre-judgment Interest
Plaintiff also requests pre-judgment interest pursuant to Ohio Revised Code §
1343.03(C)(1) because she alleges Defendants did not attempt to settle the case in good faith.
(Doc. 85). In response, Defendants argue that it was actually Plaintiff who did not attempt to
settle in good faith; this was proven when the jury returned a verdict that was much closer to
their last offer to Plaintiff than it was to Plaintiff’s last demand. (Doc. 87). A party does not fail
to make a good faith effort to settle when it has “(1) fully cooperated in discovery proceedings;
(2) rationally evaluated his risks and potential liability; (3) not attempted to unnecessarily delay
any proceedings; and (4) made a good faith monetary settlement offer or responded in good faith
to an offer from the other party.” Kalain v. Smith, 25 Ohio St.3d 157, 159-60 (1986).
Plaintiff makes no argument that Defendants were uncooperative in discovery, made an
irrational evaluation of the case, or unnecessarily delayed the proceedings; instead her only
argument centers on the offers of settlement Defendants made. (Doc. 85). The Plaintiff argues
the settlement offers throughout most of the litigation were unreasonably low and would not
even have covered her medical bills; and it was only a week before trial that Defendants
increased their offer to a reasonable number. (Doc. 85). In response, Defendants argue that
Plaintiff failed to negotiate toward a reasonable number and remained at over half a million
dollars throughout the litigation. (Doc. 87). Further, Plaintiff never responded to Defendants’ last
offer of $150,000 made on September 16, 2015. (Doc. 87). While Plaintiff is accurate in stating
this offer was completed close in time to the trial date, it was actually only two weeks after the
depositions of both of her doctors, who were to establish her injuries; and was made while a
partial motion for summary judgment was still pending before the Court. (See Docs. 32, 37, 53 &
80). Furthermore, Defendants are correct in asserting that their last offer was substantially closer

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to what Plaintiff received at trial, while Plaintiff’s last demand was more than double what the
jury awarded her. Taking into account the rapid pace at which this litigation progressed in the
final weeks before trial and the ultimate jury verdict, the Court cannot find that Defendants failed
to negotiate in good faith. Thus, Plaintiff’s request for pre-judgment interest is denied.
CONCLUSION
For the reasons stated above, the Court grants Plaintiff’s motion for costs and orders
Defendants to pay Plaintiff $859.70. But the Court denies Plaintiff’s motion for costs for Rose
Witt’s deposition and denies Plaintiff’s motion for pre-judgment interest.
IT IS SO ORDERED.
s/James R. Knepp, II
United States Magistrate Judge

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