Yarberry v. Gregg Appliances, Inc.

Filing 79

MEMORANDUM OPINION denying 77 Plaintiff's Motion to Review Clerk's Taxation of Costs. Signed by Magistrate Judge Stephanie K. Bowman on 2/8/2017. (km)

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JOHN YARBERRY,
Plaintiff,

Case No. 1:12-cv-611

v.

Black, J.
Bowman, M.J.

GREGG APPLIANCES, INC.,
Defendant.

MEMORANDUM OPINION

This case is before the Court on Plaintiff's Motion to Review Clerk's Taxation of
Costs. (Doc. 77) and Defendant’s memorandum contra. (Doc. 78).
Plaintiff sued on August 8, 2012, alleging the Company discriminated against him
because of his alleged disability, bipolar disorder, in violation of the Americans with
Disabilities Act of 1990 (“ADA”). (Doc. 1.) On April 8, 2014, this Court issued a Report
and Recommendation that hhGregg’s motion for summary judgment should be granted,
and Plaintiff’s motion for summary judgment should be denied. (Doc. 56.) The
undersigned found hhGregg was not aware Plaintiff was suffering from an alleged
disability prior to its decision to terminate his employment. (Id. at Page ID # 1721).
Furthermore, it was determined Plaintiff failed to make either a direct or indirect prima
facie case based on existing Sixth Circuit precedent that a termination for bad behavior
is appropriate even when caused by a disability, and established Sixth Circuit precedent
providing the individual decision-maker must have knowledge of the disability. (Id. at
PAGE ID ## 1724, 1726, 1729.) Finally, the undersigned concluded hhGregg had a
legitimate, nondiscriminatory reason for terminating Plaintiff’s employment based on his
behavior (“afterhours misconduct in the store, his multiple violations of store policy, and
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his refusal to cooperate with Zimmerman’s investigation”), and there was no evidence of
pretext. (Id. at Page ID ## 1731-1733, citing Doc. 56 at Page ID # 1731).
On September 16, 2014, United States District Court Senior Judge Herman J.
Weber

agreed

with,

and

wholly

adopted

the

April

8,

2014,

Report

and

Recommendation, granted hhGregg’s motion for summary judgment, and denied
Plaintiff’s motion for summary judgment. (Doc. No. 64.) Plaintiff appealed the decision
and on September 3, 2015, the Sixth Circuit Court of Appeals affirmed the District
Court’s Order granting summary judgment to Defendant. While the appellate court
found Plaintiff met the threshold elements of a prima facie case, it affirmed summary
judgment

because:

1)

the

conduct-based

reasons

for

termination

were

nondiscriminatory, and 2) hhGregg did not have to accommodate him after terminating
him for misconduct. (Id. at p. 1.)
On July 6, 2016, the Clerk issued a Memorandum on Defendant’s Bill of Costs
allowing costs of $712.05 to Defendant. (Docs. 75-76).
Plaintiff now asks the Court to review the Clerk’s taxation of costs and to issue an
order denying the Bill of Costs in its entirety. Plaintiff’s request is not well-taken.
Federal Rule of Civil Procedure 54(d)(1) states that “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). The award of costs under Rule
54 is limited to “the reimbursable costs to those enumerated in 28 U.S.C. § 1920.”
Reger v. The Nemours Found., 599 F.3d 285, 288 (3rd Cir.2010). “[T]here is a ‘strong
presumption’ that costs are to be awarded to the prevailing party.” Id. (citing In re Paoli
R.R. Yard PCB Litig., 221 F.3d 449, 462 (3rd Cir.2000)). Although Rule 54(d)
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contemplates that the clerk of court will tax costs in favor of the prevailing party, this
Court can review the Clerk's action upon motion by a party within 7 days. Id. (citing
Fed.R.Civ.P. 54(d)(1)).
“A district court's review of the clerk's determination of costs is de novo.” Id.
(citing In re Paoli, 221 F.3d at 461). In reviewing the clerk's taxing of costs, the Court's
review may be guided by a number of factors, including: “‘(1) the prevailing party's
unclean hands, bad faith, dilatory tactics, or failures to comply with process during the
course of the instant litigation or the costs award proceedings; and (2) each of the losing
parties' potential indigency or inability to pay the full measure of a costs award levied
against them.’” Id. at 288 n3 (citing In re Paoli, 221 F.3d at 468).
The following factors must not be considered in reviewing the clerk's
determination of costs: “‘(1) the losing parties' good faith in pursuing the instant litigation
(although a finding of bad faith on their part would be a reason not to reduce costs); (2)
the complexity or closeness of the issues-in and of themselves-in the underlying
litigation; or (3) the relative disparities in wealth between the parties.” Id. (citing In re
Paoli, 221 F.3d at 462). “Only if the losing party can introduce evidence, and the district
court can articulate reasons within the bounds of its equitable power, should costs be
reduced or denied to the prevailing party.” Id. at 288 (citing In Re Paoli, 221 F.3d at
462–63, 468).
Here, Plaintiff argues that the Court should deny costs because Plaintiff acted
reasonably and in good faith in filing and prosecuting this case and that awarding costs
against a plaintiff alleging termination in violation of the Americans with Disabilities Act
would prevent other litigants from pursuing their rights under the ADA.
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Both arguments have been rejected by courts. Reger, 599 F.3d at 288 n3 (citing
In re Paoli, 221 F.3d at 462, 468); see also Popeil Bros., Inc. v. Schick Elec., Inc., 516
F.2d 772, 776 (7th Cir.1975) (stating that “[t]he mere fact that the unsuccessful party
was an ordinary party acting in good faith and neither harassing its opponent nor
abusing legal process is not sufficient to overcome the presumption that the prevailing
party is entitled to costs”). Moreover, as noted by Defendant, there is no support for a
chilling effect in this matter that is different from any other case brought by an individual
alleging discrimination against an employer. In this regard, the Sixth Circuit rejected this
premise in Jones v. Continental Corp, awarding costs against a losing civil rights
plaintiff. 789 F.2d at 1233; see also Johnson, 2009 WL 275468, at *2 (awarding costs to
prevailing defendant in ADA case, including costs for deposition transcripts) (citing
Jones, 789 F.2d at 1233).
As detailed above, Rule 54(d) creates a strong presumption in favor of awarding
said costs, and the undersigned finds that Plaintiff failed to meet his burden to
overcome the strong presumption in hhGregg’s favor.
Accordingly, the Court DENIES Plaintiff's Motion to reduce the taxation of costs
in this case. (Doc. 77).
IT IS SO ORDERED.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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