AbdulSalaam et al v. Franklin County Board of Commissioners et al

Filing 143

ORDER granting 141 Motion to Review Clerk's Taxation of Costs. Signed by Judge Algenon L. Marbley on 3/26/2012. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

HADIYA ABDULSALAAM, et al.,
Plaintiffs,
v.
FRANKLIN COUNTY BOARD OF
COMMISSIONERS, et al.,
Defendants.

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Case No. 2:06-CV-413
JUDGE ALGENON L. MARBLEY
Magistrate Judge Mark R. Abel

OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court Plaintiffs’ Motion to Review Clerk’s Taxation of Costs.
(Doc. 141.) For the following reasons, Plaintiffs’ Motion is GRANTED.
II. BACKGROUND1
Plaintiffs Hadiya AbdulSalaam, as a mother and natural guardian of her daughter,
Makeba Kristos, and Hadiya’s other two daughters, Meserete Kristos and Masika Kristos,
(collectively referred to herein as “Plaintiffs”), were separated for a year during which time the
children were placed in custody of the Franklin County Children Services (“FCCS”) due to
allegations of educational neglect and physical abuse in the home. Plaintiffs filed a complaint
against Franklin County Board of Commissioners, the Board of Trustees of the FCCS, and

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The facts of this case are detailed at length in this Court’s prior Opinion and Order on the parties’ crossmotions for summary judgment. Abdulsalaam v. Franklin Cnty. Bd. of Comm’rs, 637 F. Supp. 2d 561
(S.D. Ohio 2009). It is unnecessary for purposes of deciding Plaintiffs’ Motion to Review Clerk’s
Taxation of Costs to summarize those facts again.
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various employees of FCCS in May, 2006, alleging that the allegations of abuse and neglect
were fabricated by an FCCS caseworker and were the result of racial discrimination by the
caseworker and the agency. Plaintiffs filed an amended complaint with leave of the Court in
October, 2008, in which they brought various claims under 42 U.S.C. § 1983 for discrimination,
retaliation, and deprivation of due procession, and state law claim for intentional/reckless
infliction of serious emotional distress.
Cross-motions for summary judgment followed, and this Court granted in part and denied
in part Defendants’ motion, and denied Plaintiffs’ motion in its entirety. After this Court decided
the summary judgment motions only one Defendant remained, caseworker Amber Spires. Trial
began on February 24, 2011, and the jury reached a verdict in favor of the Defendant Spires on
March 14, 2011. In July, 2011, the Clerk of Courts taxed costs against the Plaintiffs in the
amount of $5,721.67. Plaintiffs filed a Motion to Review Clerk’s Taxation of Costs, which is
now ripe for review.
III. LAW AND ANALYSIS
Federal Rule of Civil Procedure 54(d) provides that “[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.” Rule 54(d) “creates a presumption in favor of awarding costs, but
allows denial of costs at the discretion of the trial court.” White & White, Inc. v. Am. Hosp.
Supply Corp., 786 F.2d 728, 730 (6th Cir. 1986). “The unsuccessful party has the burden of
showing circumstances sufficient to overcome this presumption.” Rashid v. Commc’n Workers
of Am., No. 3:04-CV-291, 2007 WL 315355, at *2 (S.D. Ohio Jan. 30, 2007).
The Sixth Circuit has described certain circumstances where denial of costs is a proper
exercise of discretion. These circumstances include cases where: taxable expenditures by the
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prevailing party are “unnecessary or unreasonably large,” Lichter Found., Inc. v. Welch, 269
F.2d 142, 146 (6th Cir. 1959); the prevailing party’s recovery is so insignificant that the
judgment amounts to a victory for the defendant, Id.; the prevailing party should be penalized for
unnecessarily prolonging a trial or injecting unmeritorious issues, Nat’l Transformer Corp. v.
France Mfg. Co., 215 F.2d 343, 362 (6th Cir. 1954); or cases that are “close and difficult,”
United States Plywood Corp. v. Gen. Plywood Corp., 370 F.2d 500, 508 (6th Cir. 1966), cert.
denied 389 U.S. 820 (1967). Refusal to tax costs against an indigent litigant is also a permissible
exercise of discretion. Singleton v. Smith, 241 F.3d 534, 539 (6th Cir. 2001) (citing Jones v.
Cont’l Corp., 789 F.2d 1225, 1233 (6th Cir. 1986)).
This Circuit has identified factors that the district courts should ignore when determining
whether to exercise discretion and deny taxation of costs. For example, district courts should not
consider the size of a successful litigant’s recovery, Lichter Found., 269 F.2d at 146, or the
ability of the prevailing party to pay for his or her costs, Lewis v. Pennington, 400 F.2d 806, 819
(6th Cir. 1968), cert. denied 393 U.S. 983 (1968), reh’g denied 393 U.S. 1045 (1969). There are
also factors that may be considered, but in the absence of other relevant factors, do not warrant
the exercise of discretion. One such factor is a losing party’s good faith in filing, prosecuting, or
defending an action. White & White, 786 F.2d at 731 (citing Coyne-Delany v. Capital Dev. Bd.
of Illinois, 717 F.2d 385, 390 (7th Cir. 1983)).
Plaintiffs argue that this Court should exercise its discretion to deny taxation of costs
because Plaintiffs lack the financial means to pay costs. Plaintiffs also contend that they brought
the lawsuit in good faith, which is evident because: they successfully demonstrated in domestic
state court that removal of the daughters from the home was unjustified; their causes of action
survived Defendants’ motion for summary judgment and a subsequent interlocutory appeal; and
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this matter resulted in a lengthy trial. The case was close and difficult because there was a
lengthy jury deliberation, factually and legally complex claims, and lengthy litigation. Plaintiffs’
final argument is that “[i]f the defendant is successful in taxing costs in this case against these
plaintiffs, there is a very real risk that, in the future, citizens of modest means who have their
constitutional rights violated may shy away from seeking redress in the courts out of fear of
being financially crippled by an adverse judgment and the resulting award of costs.” (Doc. 141.)
Defendant Spires argues that while Plaintiffs have suggested it would be difficult for
them to pay costs, they have not demonstrated a future inability to pay, which is necessary to
show indigence. Even if Plaintiffs are indigent, they may still be taxed costs. Defendant Spires
argues that the record indicates Plaintiffs have not always proceeded in good faith during the
lawsuit, but even presuming that they have, such a showing is not enough to preclude an award
of costs. Plaintiffs’ arguments offered in support of their position that the case was close and
difficult are speculative. There were only twelve days of actual trial, and the trial dealt with
straight-forward legal and factual issues. Finally, Defendant Spires challenges Plaintiffs’ last
argument that the allowance of costs will have a chilling effect on future litigants by pointing out
that the jury held Plaintiffs’ constitutional rights were not violated.
Each Plaintiff in this case submitted a declaration dated April 13, 2011 that contains
information about her respective financial position. Plaintiff Hadiya’s declaration indicates that
her income in 2010 was $7,820, and that her income for January, February, and March, 2011 was
$2,295. Plaintiff Hadiya has no assets in the form of cash, stocks, bonds, or property, real or
chattel, and her total debt as of April, 2011, is $77,912.96.
Plaintiff Masika’s declaration indicates that she had no income for 2011 as of April due
to a reconstructive knee surgery, but that her total income in 2010 was $22,665. Plaintiff Masika
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has debt totaling $63,401.93, and her rent, utilities, and insurance are $982 (presumably per
month). She states that she has no cash on hand, stock, bonds, or other property, real or chattel.
Plaintiff Meserete had a total income of $24,592 in 2010, and an income of $4,500 in the
first three months of 2011. Plaintiff Meserete has debt totaling $16,788, and her rent, utilities,
and insurance are $976 total (presumably per month). She states that she also has no cash on
hand, stock, bonds, or other property, real or chattel. Both Plaintiffs Masika and Meserete are
students, single, and have no dependents.
Makeba is single, has one minor child, and is unemployed. Her total income during 2010
was $4,000, and her income during the first three months of 2011 was $3,461.04. Makeba’s
declaration indicates she has $6,000 of debt in the form of student loans. She states that she also
has no cash on hand, stock, bonds, or other property, real or chattel. Makeba receives welfare
cash assistance, Care Source medical insurance, and food stamps.
Plaintiffs have demonstrated, successfully, that they are indigent and should not be taxed
costs. Together their total debt is approximately $165,000. Each Plaintiff has indicated that her
income for 2010 was less than $25,000, and that she has no cash on hand, stock, bonds, or other
property, real or chattel. Plaintiff Makeba receives welfare and food stamps, and must support
her minor child. Because the Court can exercise its discretion and refuse to tax costs against
indigents, this Court finds that Plaintiffs should not have to bear the additional financial burden
of taxed costs. See Singleton, 241 F.3d at 539 (citing Jones, 789 F.2d at 1233); Robinson v. City
of North Olmstead, No. 193CV1203, 1997 WL 33169252, at *2 (N.D. Ohio May 12, 1997)
(finding that it was inappropriate to tax costs against a 66 year-old plaintiff who was unemployed
and collecting social security benefits).

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Plaintiffs’ closeness and difficulty argument is unpersuasive because this case involved
relatively routine 42 U.S.C. § 1983 causes of action for discrimination, retaliation, and
deprivation of due procession. See White & White, 786 F.2d at 733–33 (explaining that “[t]he
closeness of a case is judged not by whether one party clearly prevails over another, but by the
refinement of perception required to recognize, sift through and organize relevant evidence, and
by the difficulty of discerning the law of the case.”); United States Plywood, 370 F.3d at 508
(finding a case was close and difficult where the issues of the case were related the validity of a
patent and infringement of that patent, and where a lengthy trial ensued). Nevertheless, the other
factors cited by Plaintiffs, though not dispositive, support this Court’s decision to deny costs.
See White & White, 786 F.2d at 730 (explaining that a plaintiff’s good faith in relation to filing
and litigating a lawsuit is not a dispositive factor in a court’s analysis); U.S. ex rel. Pickens v.
GLR Constrs., Inc., 196 F.R.D. 69, 77 (S.D. Ohio 2000) (considering the chilling effect argument
where the other factors weighed in favor of denying costs). Plaintiffs proceeded in good faith
throughout the lawsuit, which continued past the motions stage, to trial. Moreover, taxing costs
here may have a chilling effect on citizens of modest means seeking redress in the courts for
potential violations of their constitutional rights. Taxing costs against the Plaintiffs would create
an additional economic burden for a family that has already demonstrated it is struggling
financially.
Therefore, given Plaintiffs’ indigency and the totality of the circumstances, it is
inappropriate to tax costs in this case.

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III. CONCLUSION
For the reasons stated herein, Plaintiffs’ Motion to Review Clerk’s Taxation of Costs is
GRANTED.
IT IS SO ORDERED.
s/ Algenon L. Marbley
Algenon L. Marbley
United States District Judge
Dated: March 26, 2012

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