Cottier, et al v. Martin, City of, et al
Filing
516
MEMORANDUM OPINION AND ORDER granting 501 Motion for Review of Taxation of Costs to the extent costs in the amount of $1,000 will be taxed against Plaintiff Pearl Cottier and in favor of Defendants. Signed by U. S. District Judge Lawrence L. Piersol on 2/7/12. (DJP)
FILED
UNITED STATES DISTRICT COURT
FEB 0 7 2012
DISTRICT OF SOUTH DAKOTA
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WESTERN DIVISION
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PEARL COTTIER and REBECCA
CIV 02-5021
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THREE STARS,
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Plaintiffs,
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MEMORANDUM OPINION
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-vs
AND ORDER ON REVIEW OF
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TAXATION OF COSTS
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CITY OF MARTIN; TODD
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ALEXANDER; ROD ANDERSON;
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SCOTT LARSON; DON MOORE;
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BRAD OTTE; and MOLLY RISSE, in
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their official capacities as members of
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Martin City Council; and JANET
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SPEIDEL, in her official capacity as
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Finance Officer of City of Martin,
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Defendants.
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Following dismissal ofthis case, the Clerk of Court taxed costs in the amount of$8,295.87
in favor of Defendants against Plaintiffs Pearl Cottier and Rebecca Three Stars. (Doc. 499.)
Defendants had requested $19,375.34. (Doc. 491.) They have filed a Motion for Review ofTaxation
ofCosts, doc. 501, challenging five categories ofcosts which the Clerk denied: (1) a $255 filing fee
for a cross-appeal in the Eighth Circuit; (2) court reporter fees for transcripts ofsome court hearings
and the trial transcript; (3) fees for printing related to the lawyers' correspondence with Defendants;
(4) witness fees, travel and subsistence expenses related to Defendants' expert, Dr. Weber, for his
attendance at trial to listen to the testimony ofPlaintiffs' expert, Dr. Cole; and (5) miscellaneous costs
for conference calls ($1,261.55), trial notebooks ($509.21), a book ($43.94) and audiotapes ($27.75).
In their Briefin Opposition to the Defendants' Motion for Review ofTaxation ofCosts, doc.
502, Plaintiffs not only respond to Defendants' allegations of error by the Clerk in failing to tax
certain costs, but also ask the Court to review some costs that were taxed by the Clerk. A motion
for review of costs must be filed within seven calendar days after the Clerk taxes costs. See Fed.
RCiv.P. 54(d)(l) and D.S.D. LR 54.1 (A). The Clerk filed the Taxation of Costs on September 1,
2010, and Plaintiffs' briefwas filed on October 4, 2010. Plaintiffs should have asked for review
within seven days after the Clerk taxed costs, and Plaintiffs' request for review of costs is denied as
untimely. Despite denial ofthe Plaintiffs' request for review, the Court has carefully scrutinized the
costs requested by Defendants.
DECISION
Unless the Court directs otherwise, the prevailing party in an action is entitled to an award
ofcosts other than attorneys' fees pursuant to Federal Rule ofCivil Procedure 54( d). Smith v. Tenet
Healthsystem SL, Inc., 436 F.3d 879, 889 (8th Cir. 2006) (citing Fed.R.Civ.P. 54). The amount of
costs awarded is an "issue [] within the sound discretion ofthe district court .... " Poe v. John Deere
Co., 695 F.2d 1103, 1108 (8th Cir. 1982). "However, such costs must be set out in28 U.S.C. § 1920
or some other statutory authorization." Smith, 436 F.3d at 889. Section 1920 provides that:
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use
in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs ofmaking copies ofany materials where the
copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs ofspecial interpretation services under section 1828
ofthis title.
28 U.S.C.A § 1920.
Federal Rule of Civil Procedure 54(d) has been interpreted as creating a presumption that
costs are to be awarded to the prevailing party. See Delta Air Lines, Inc. v. August, 450 U.S. 346,
352 (1981); Martin v. Daimler-Chrysler, 251 F.3d 691, 696 (8th Cir.200} ) (citations omitted).
"Despite this presumption, however, the district court has substantial discretion in awarding costs to
a prevailing party." Greaser v. State, Dept. of Corrections, 145 F.3d 979, 985 (8th Cir.l998)
(upholding district court's denial of costs to prevailing defendant in discrimination case). Although
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some circuits have held that costs should only be denied to a prevailing party if it is guilty of some
misconduct or bad faith, the Eighth Circuit takes a broader view, finding that Rule 54(d)'s grant of
discretion alone permits a court to deny costs. See Greaser, 145 F.3d at 985. In determining costs,
the Court may consider a plaintiff's limited financial resources, Cross v. General Motors Corp., 721
F.2d 1152, 1157 (8th Cir.1983), and the Court may deny costs if"a plaintiffis poor or for other good
reason ...." Poe, 695 F.2d at 1108.
The Court first will address each category of costs for which Defendants seek review, and
then will explain why the particular circumstances ofthis case will exempt Plaintiffs from liability for
a portion ofthe taxable costs.
A. Fees of Clerk
Defendants seek a $255 filing fee paid to the Eighth Circuit for a cross appeal. Defendants
state that the Eighth Circuit dismissed the cross appeal because Defendants could make their
arguments in the course of Plaintiffs' appeal. The Court finds that the filing fee for the cross appeal
is not recoverable because the cross appeal was dismissed and was neither necessary nor successful.
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B. Fees for Transcripts
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Defendants ask to recover the cost of court reporter fees for transcripts of three separate
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hearings and the trial transcript. Taxation of these costs is authorized under § 1920(2) when the
transcripts were "necessarily obtained for use in the case."
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The record shows that four witnesses testified at the hearing on Plaintiffs' motion for a
preliminary injunction on May 24, 2002, and three ofthose same witnesses testified at the 2004 trial.
The Court finds that it was necessary for counsels' effective performance to obtain a copy of the
hearing transcript to prepare the case for trial, and for use at trial. Defendants are entitled to taxation
of$413.40 for the copy of the May 24,2002 hearing transcript.
Defendants seek fees for a transcript of a hearing which took place in an unrelated case on
July 17, 2003. According to Defendants, the transcript was necessary to counter "Plaintiffs' meritless
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position that Sheriff Cummings was fired by the City of Martin due to his race." A copy of the
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hearing transcript is not in the record and, therefore, the Court cannot make a determination whether
it was necessary for use in this case. Accordingly, the cost ofthis transcript will not be taxed.
Defendants assert that they needed a transcript 0 fthe pretrial conference to address Plaintiffs'
argument on appeal that Judge Schreier erred in prolubiting use ofthe exit poll. Defendants state that
the pretrial hearing transcript "was used and discussed at length in the parties' appellate briefs." The
appellate briefS are not in the record before this Court, so the Court cannot review them. The Court
has reviewed the transcript of the pretrial conference held on May 24, 2004. During the pretrial
conference, Judge Schreier ruled that if Plaintiffs planned to offer into evidence an exit poll to be
conducted June I, 2004, the Court would continue the trial date in order to allow time for Defendants
to conduct discovery on the new evidence. Counsel for Plaintiffs responded that they did not want
a continuance and understood that the 2004 exit poll evidence would be excluded ifoffered at trial. J
(Pretrial Conference Transcript at p. 48-62.) The Eighth Circuit opinions in this case discuss whether
the 2003 exit polls were reliable, but there is no reference to Judge Schreier's decision to deny
Plaintiffs' use ofthe 2004 exit poll, and it is not clear to the Court that a transcript ofthe pretrial
conference was necessary for use in this case. Thus, the cost for the transcript ofthe May 24, 2004
pretrial conference will not be taxed.
Judge Schreier directed the parties to refer to the transcript of the 2004 trial in order to
prepare proposed findings offact. The parties split the cost ofthe transcript. The Court finds that
the trial transcript was necessarily obtained for use in the case. Thus, Defendants are entitled to
taxation of$5,542.95 for the trial transcript.
C. Fees for Printing
The Clerk denied Defendants' costs related to correspondence with clients. The Court has
reviewed the entries for "correspondence to client" submitted by Defendants. (Doc. 491-1 at p. 5
10.) The entries reflect a cost of $.25 per page for documents that were copied and sent to
Defendants by their lawyers, for a total amount of $1 04 based on the Court's calculations. It is
JAt trial, Plaintiffs made an offer ofproofregarding the 2004 exit poll. (Trial Transcript at p. 670
675.)
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necessary for a lawyer to correspond with his or her clients in litigation, sometimes including copies
ofdocuments related to the case, and the statute specifically allows recovery ofcosts associated with
necessary copies of materials.
See 28 U.S.C. § 1920(4). The Court would prefer to have a
description ofthe substance ofthe correspondence and the documents copied and enclosed, but the
amounts claimed here for copies for clients are reasonable for a case of this length and complexity.
Costs in the amount of$1 04 will be taxed for the copies of documents included in correspondence
to Defendants.
D. Witness Fees
The Clerk allowed costs for the attendance ofDefendants' expert, Dr. Weber, at trial during
his own testimony, but disallowed costs for his attendance at trial during the testimony of Plaintiffs'
expert witness, Dr. Cole, from June 7, 2004 to June 9, 2004, as well as two travel days.2 Defendants
appropriately seek only the statutory amount permitted for expert witnesses under 28 U.S.C.
§ 1821(b). See Crawford Fitting Co. v. J T Gibbons, Inc., 482 U.S. 437, 442 (1987) (under 28
U.S.C. § 1920, court may tax expert witness fees in excess ofthe statutory limit per day only when
the witness is court-appointed). If Dr. Weber's attendance was necessary, Defendants are entitled
to those statutory costs associated with Dr. Weber attending the trial June 7,2004 through June 9,
2004, and two travel days, to listen to Dr. Cole's testimony. See Linneman Constr., Inc. v. Montana
Dakota Utilities Co., Inc., 504 F.2d 1365, 1372 (8th Cir. 1974) (agreeing with general rule that
attendance and subsistence allowances are not restricted to the days on which the witness actually
testifies, but may include each day that the witness necessarily attends the trial).
Both parties' experts were indispensable to this case, and the courts heavily relied on their
testimony. In the first Eighth Circuit appeal, the panel ruled that the results of the 2003 exit poll
supported Plaintiffs' vote dilution claim. See Cottierv. City ofMartin, 445 F.3d 1113, 1120 (8th Cir.
2006). Dr. Cole orchestrated the 2003 exit poll on behalf ofPlaintifiS, and he testified about it at
length during the triaL It was crucial for Dr. Weber to have been present for the testimony of Dr.
Cole in order to respond to the testimony. The Eighth Circuit's en banc opinion shows that Dr.
2Dr. Weber attended tbe first three days oftrial from June 7,2004 to June 9, 2004, to listen to Dr.
Cole's testimony. On June 24 and 25, 2004, Dr. Weber provided his own testimony.
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Weber's testimony, including countering Dr. Cole's testimony, played a vital role in the final
resolution of the case in Defendants' favor. See Cottier v. City of Martin, 604 F.3d 553 (8th Cir.
2010). The Court will tax the statutory costs in the amount of$200 for Dr. Weber attending the trial
June 7,2004 through June 9,2004, and two travel days.3
Defendants also are entitled to $640.01 for costs incurred for Dr. Weber's deposition. See
Fed.R.Civ.P. 26(b)(4)(E) ("Unless manifest injustice would result, the court must require that the
party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery
...."). The Court sees no manifest injustice in awarding the costs incurred for the deposition
requested by Plaintiffs.
E. Other Costs
Defendants seek miscellaneous costs for telephone conference calls ($1,261.55), trial
notebooks ($509.21), a book ($43.94) and aUdiotapes ($27.75). In assessing costs, the Court is
limited to those items listed in 28 U.S.C. § 1920. See Crm1{ord Fitting, 437 U.S. at 445 (absent
explicit statutory or contractual authorization federal courts are bound by the limitations set out in
28 U.S.C. § 1920). The Supreme Court explained,
If Rule 54(d) grants courts discretion to tax whatever costs may seem appropriate,
then § 1920, which enumerates the costs that may be taxed, serves no role
whatsoever. We think the better view is that § 1920 defines the term "costs" as used
in Rule 54(d). Section 1920 enumerates expenses that a federal court may tax as a
cost under the discretionary authority found in Rule 54(d). It is phrased permissively
because Rule 54( d) generally grants a federal court discretion to refuse to tax costs
in favor ofthe prevailing party.
Id. at 441-442. See also, Arlington Cent. School Dist. Bd. ofEduc. v. Murphy, 548 U.S. 291, 301
(2006) (''the term 'costs' in 20 U.S.C. § 1415(i)(3)(B), like the same term in Rule 54(d), is defined
by the categories of expenses enumerated in 28 U.S.c. § 1920"). The miscellaneous costs sought
by Defendants are office overhead or business expenses not reimbursable under 28 U.S.C. § 1920.
3"A witness shall be paid an attendance fee of $40 per day for each day's attendance. A witness
shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the
place of attendance at the beginning and end of such attendance or at any time during such attendance."
28 U.S.C.A. § 1821.
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The Clerk of Court taxed fees for private process, but Defendants cannot recover costs for
private process fees. The Eighth Circuit held in Crues v. KFC Corp., 768 F.2d 230, 234 (8th Cir.
1985), that fees of private process servers are not taxable as costs because 28 U. S.C. § 1920 does
not allow for the award ofsuch expenses. The Court recognizes that some circuits allow prevailing
parties to recover the expense ofprivate process servers under section 1920, but this Court is bound
by the Eighth Circuit's holding in Crues and the plain language of28 U.S.c. § 1920, which does not
allow an award of costs for a private process server. Thus, Defendants are not entitled to recover
$95.00 for service ofthe subpoena on PlaintiffS' expert, or $30.91 for service ofthe trial subpoena
on William Lass.
The Court has determined that Defendants would be allowed to recover costs in the amount
of $14,870.31 if reasons did not exist to relieve PlaintiffS of the burden of paying costs. For the
following reasons, the Court finds that PlaintiffS' particular circumstances and other factors justifY
denying an award offull costs in this civil rights Voting Rights Act case.
Plaintiffs Pearl Cottier and Rebecca Three Stars claim they are unable to pay costs, and they
have submitted affidavits in support of this claim. Plaintiff Pearl Cottier earns about $55,000.00 a
year and also receives $1,200.00 a month in social security. She has no assets other than three
vehicles with outstanding balances owing on the vehicles and she supports other households of
unemployed family members. She cannot pay all of her bills. Rebecca Three Stars earns about
$22,000.00 a year and has no other assets or support and owes $180,000.00 in hospital bills.
This was a Voting Rights Act lawsuit in which both PlaintiffS stood to gain nothing personally.
The long history of this lawsuit shows that it was not brought in bad faith, it was not vexatious,
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unreasonable, frivolous or without merit. 4 Instead, it was a very close and difficult case. The costs
would surely be less if it were not such a close and difficult case.
Under the unusual facts ofthis case, the Court in its discretion awards a portion ofthe costs
to the Defendant in the amount of $1,000.00 against Plaintiff Pearl Cottier and awards no costs
against Rebecca Three Stars as she is a poor person who brought an action on behalfofother Native
American voters with no possibility ofmonetary gain for herself. Pearl Cottier may well have trouble
paying her bills, but she is not a poor person. She, too, stood to gain nothing financially from this
lawsuit brought in South Dakota on behalf of not only herself and other Native American voters in
Martin, but also all Native Americans voters in South Dakota from a precedent point of view. Ms.
Cottier is required to pay $1,000.00 in costs to the Defendants.
No basis has been shown for the payment ofcosts by the attorneys for PlaintiffS. Accordingly,
IT IS ORDERED that Defendants' Motion for Review of Taxation of Costs, doc.
501, is granted to the extent that costs in the amount of$I,OOO will be taxed against
Plaintiff Pearl Cottier and in favor of Defendants. Plaintiff Rebecca Three Stars will
not be required to pay any costs.
4 After an II-day court trial in June 2004, the district court entered judgment in favor of
Defendants in March 2005. Plaintiffs appealed. The Eighth Circuit affinned with respect to Plaintiffs'
constitutional claims but reversed and remanded the Voting Rights Act claim. See Cottier v. City of
Martin, 445 F.3d 1113 (8th Cir. 2006). On remand, the district court held that the City's wards violate
the Voting Rights Act by diluting the Native American vote and ordered Defendants to propose a remedy.
See Cottier v. City ofMartin, 466 F.Supp.2d 1175 (D.S.D. 2006). Defendants failed to propose a remedy,
arguing that no workable remedy existed. On February 9, 2007, the Court adopted one of Plaintiffs'
proposed remediation plans and entered judgment in Plaintiffs' favor. See Cottier v. City ofMartin, 475
F.Supp.2d 932 (D.S.D. 2007). The Eighth Circuit affinned the district court's ruling and remedy in favor
ofPlaintiffs. See Cottier v. City ofMartin, 551 F .3d 733 (8th Cir. 2008). After granting rehearing en bane,
the Eighth Circuit vacated the district court's judgment and remanded with directions to dismiss Plaintiffs'
case. See Cottierv. City ofMartin, 604 F.3d 553 (8th Cir. 2010). On November 15,2010, the Supreme
Court denied Plaintiffs' petition for a writ of certiorari. See Cottier v. City of Martin, 131 S.Ct. 589
(2010).
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Dated this 7th day of February, 2012.
BY THE COURT:
wrence L. Plerso 1
United States District Judge
ATTEST:
::SEPHH@C~
DEPUTY
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