Timbuktu et al v. WE Energies et al

Filing 95

ORDER signed by Judge J.P. Stadtmueller on 1/12/2017 DENYING 94 Plaintiffs' Motion to Vacate Bill of Costs. (cc: all counsel, via mail to Adib Timbuktu and Dennice Moore) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ADIB K. TIMBUKTU and DENNICE
MOORE,
Plaintiffs,

Case No. 12-CV-720-JPS

v.
NEAL, EDWARD A. FLYNN, OFFICER
GREGORY HUNTER, CITY OF
MILWAUKEE DEPARTMENT OF
NEIGHBORHOOD SERVICES, and
BLUNT,

ORDER

Defendants.
On December 28, 2016, the Clerk of the Court issued a bill of costs to
the plaintiffs based on the judgment entered against them. (Docket #93). On
January 11, 2017, the plaintiffs filed a motion to “vacate” that bill. (Docket
#94). Federal Rule of Civil Procedure 54(d)(1) provides that costs should be
allowed to a prevailing party, in this case the defendants. Fed. R. Civ. P.
54(d)(1); see (Docket #88 and #89). The plaintiffs assert that they are indigent
and cannot pay the costs. (Docket #94). The Seventh Circuit has read an
indigency exception into Rule 54(d)(1). Rivera v. City of Chicago, 469 F.3d 631,
634 (7th Cir. 2006). This is not automatic simply because the losing party was
granted leave to proceed in forma pauperis, however. It requires a threshold
factual determination from the Court that the losing party is unable to pay
the costs now or in the future. Id. at 635. The losing party must “provide the
district court with sufficient documentation to support such a finding. This
documentation should include evidence in the form of an affidavit or other
documentary evidence of both income and assets, as well as a schedule of
expenses.” Id. (citation and quotation omitted). The plaintiffs’ bare statements

in the motion provide none of this evidence. The motion must, therefore, be
denied.1
Accordingly,
IT IS ORDERED that the plaintiffs’ motion to vacate (Docket #94) be
and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 12th day of January, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

1

The plaintiffs’ motion further states that “[t]he request for taxation is
untimely.” (Docket #94). The request by the defendants was timely filed in
September 2013, when the case was closed. (Docket #90). The bill the plaintiffs seek
to vacate was issued by the Clerk of the Court, not the defendants. In fact, the
plaintiffs’ instant motion appears untimely, but the Court has generously addressed
it as it is otherwise deficient. See Fed. R. Civ. P. 54(d)(1) (“The clerk may tax costs
on 14 days’ notice. On motion served within the next 7 days, the court may review
the clerk’s action.”) (emphasis added).

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