Carlson et al v. City of Austin Police Dept. et al

Filing 90

ORDER DENYING 88 Motion for Costs. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BRENDA J. CARLSON
THOMAS R. GANDY
V.
DET. SHAWN LAPUSZYNSKI

§
§
§
§
§
§

A-10-CA-130-AWA

ORDER
Before the Court is Detective Shawn Lapuszynski’s Motion for Costs (Clerk’s Doc. No. 88)
and the Plaintiffs’ Response (Clerk’s Doc. No. 89). The Court granted Lapuszynski’s motion for
summary judgment (Clerk’s Doc. No. 86) and entered final judgment (Clerk’s Doc. No. 87). In the
final judgment order, the Court ordered “that each party bear their own costs.” Id.
The City of Austin, which represented Detective Lapuszynski, asks the Court to award the
City its costs ($2,717.70) as the prevailing party according to the federal rules. FED . R. CIV . P. 54(d)
(“[C]osts . . . should be allowed to the prevailing party.”). An award of costs is not automatic, for
the court has discretion about whether to award costs. See Pacheco v. Mineta, 448 F.3d 783, 793
(5th Cir. 2006) (reviewing a district court’s decision to deny costs under an abuse of discretion
standard).
At the same time, Rule 54(d) creates a strong presumption that the prevailing party will be
awarded costs: the Fifth Circuit has held that the prevailing party “is prima facie entitled to costs.”
Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985). For a court to deny costs, it must articulate
a reason for its denial. Id. Although the Fifth Circuit has not articulated particular justifications for
denying costs, Wright & Miller offers a compilation of cases where courts have denied the prevailing

party costs. See 10 CHARLES ALAN WRIGHT , ARTHUR R. MILLER & MARY KAY KANE , FEDERAL
PRACTICE AND PROCEDURE § 2668 (3d. ed. 1998).
Several factors counsel against awarding costs to the City. First, to a not insignificant extent,
the City’s actions are partially responsible for the Plaintiffs’ suit. Despite the Court finding
Lapuszynski not liable for damages, the City could have possibly avoided the lawsuit entirely if the
officers responding to the initial dispute in this matter had not arrested Margaret Reeves. That arrest
escalated the situation. Further the officers who responded to later calls in the case failed to
thoroughly document issues that became important in this case. In particular, the reporting officer
on the September 26, 2009 incident failed to document that Reeves suffered an injury to her head
on that date and failed to probe why she was reluctant to cooperate with officers on that
date—something that Det. Lapuszynski eventually did investigate.
Second, the Plaintiffs had more than merely a non-frivolous claim—on its face, their
complaint alleged a plausible factual scenario that could lead to a legitimate claim. See Report and
Recommendation (Clerk’s Doc. No. 39) (dismissing most of the Plaintiffs’ claims but keeping their
§ 1983 claim against Lapuszynski). Further, the Plaintiffs survived a motion to dismiss, even after
the Court ordered the City to supplement its motion because it “only cursorily addresses the causes
of action brought in Plaintiffs’ Complaint.” Clerk’s Doc. No. 29. This also counsels against
awarding the City costs.
Third, when they filed suit the Plaintiffs did not have access to much of the relevant
information in this case. They based their lawsuit on their arrest and the subsequent dismissal of the
charges for insufficient evidence, and before filing suit they could not have ascertained what
precipitated either event. The Court recognized this disparity and its concerns with the police reports
2

and probable cause affidavit in its order granting in part and denying in part the Defendants’ motion
to dismiss. See Clerk’s Doc. No. 39 at 9–10. Until discovery, the Plaintiffs could not ascertain
whether their claims were meritorious. Although Detective Lapuszynski performed a probing
investigation and provided all material information to Judge Denton, the Plaintiffs did not know the
details of his investigation until the City produced documents and the Plaintiffs deposed
Lapuszynski.
Finally, the Plaintiffs suffer poor financial health. The City points to its own financial
hardships to support an award of costs in this case, but ignores the Plaintiffs’ financial condition.
Requiring the Plaintiffs to pay $2,717.70 in costs would substantially affect their finances. The
Court denied the Plaintiffs in forma pauperis status (Clerk’s Doc. No. 2), but that was based on
Gandy’s father giving them a loan. If the City would like the Court to consider its financial
condition, then the Court should also consider the Plaintiffs’. The Plaintiffs have not had prolonged,
uninterrupted periods of employment (at least partially because of their arrest), they do not have
much in savings or assets, and they lived with Reeves for months to save money.
For the aforementioned reasons, the Court HEREBY DENIES Detective Shawn
Lapuszynski’s Motion for Costs (Clerk’s Doc. No. 88). As per its previous order, each party shall
bear their own costs.
SIGNED this 28th day of June, 2011.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

3