Northern States Power Company v. The City of Ashland, Wisconsin et al

Filing 630

ORDER: IT IS ORDERED that plaintiff Northern States Power's motions for court review of taxable costs pursuant to Fed. R. Civ. P. 54(d)(1), dkts. ## 616 and 618 are GRANTED and the clerk of court's determinations of taxable costs are AFFIRMED over plaintiff'sobjections. Signed by District Judge Barbara B. Crabb on 1/5/2016. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - NORTHERN STATES POWER COMPANY,
OPINION AND ORDER
Plaintiff,
12-cv-602-bbc
v.
THE CITY OF ASHLAND, WISCONSIN
and ASHLAND COUNTY, WISCONSIN,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Each of the defendants, City of Ashland and Ashland County, moved for an award of
costs in this case after they prevailed at trial against plaintiff Northern States Power’s
allegations that they had contributed to the contamination of Chequamegon Bay and an area
of the City of Ashland known as Kreher Park. The clerk of court awarded defendants most
but not all of the amounts they had sought. The City was awarded $146,131.13 out of a
request of $172,611.52; the County was awarded $38,817.97 out of a request of
$40,407.43. Disappointed with the clerk’s actions, plaintiff moved for a review of the
awards under Fed. R. Civ. P. 54(d)(1), asking this court to order that defendant City bear
its own costs or reduce the costs awarded to defendant City to $119,043.75. Plaintiff does
not contend that defendant County should bear its own costs but does ask that the costs be
reduced to $27,227.33.

1

A. Defendant City’s Costs
1. Entitlement to award of costs
Plaintiff contests the clerk’s approval of any costs for defendant City, pointing out
that the court has discretion to deny such costs altogether. This is true, but the governing
rule, Fed. R. Civ. P. 54(d) states 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.” Undaunted, plaintiff cites one appellate decision and three district court decisions
from this circuit in which the courts entered an order denying any allocation of costs.
Plaintiff does not note that in each case, the court allowed an award of costs to the party
that had prevailed on the substantial part of the litigation and denied costs only when it
could not find that any party had prevailed substantially.
None of the cases cited by plaintiff supports its position that the court should deny
the City any award of costs. In Testa v. Village of Mundelein, 89 F.3d 443, 447 (7th Cir.
1996) (not improper to order each party to bear its own costs when neither party could be
said to have prevailed on substantial part of litigation); Ellis v. Country Club Hills, 2012
U.S. Dist. LEXIS 129693 (N.D. Ill. Sept. 12, 2012) (same); Rice v. Sunrise Express, Inc.,
237 F. Supp. 2d 962 (N.D. Ind. 2002) (district court denied defendant’s bill of costs after
finding that plaintiff prevailed on central issue in her lawsuit, although she was awarded only
$720 in damages); Mary M. v. North Lawrence Community School Corp., 951 F. Supp.
820, 828 (S.D. Ind. 1997) (district court awarded costs to plaintiff because she prevailed on
liability, even though she was awarded no damages) (rev’d on other grds.). See also Rivera

2

v. City of Chicago, 469 F.3d 631, 634 (7th Cir. 2006) (Rule 54(d)(1) presumes that losing
party will pay costs but grants court discretion to direct otherwise; in general this happens
only when the party seeking costs has engaged in misconduct or the losing party is indigent
and court exercises its discretion to reduce award of costs or relieve party of all obligation
for costs); Northbrook Excess and Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633,
641-42 (7th Cir. 1991) (court of appeals approved lower court’s decision to award costs to
counterclaim defendant that prevailed on substantial part of litigation despite fact that it was
determined to have some liability); First Commodity Traders, Inc. v. Heinhold
Commodities, Inc., 766 F.2d 1007, 1015 (7th Cir. 1985) (under Rule 54(d), prevailing
party is party who prevails as to substantial part of litigation).
Plaintiff was never able to prove that defendant City took or omitted any action that
contributed to or dispersed the contamination of the areas in dispute. The evidence showed
that defendant City had never taken the actions alleged by plaintiff, which included: (1)
connecting the manufactured gas plant (the undisputed source of tar waste) to the municipal
waste system; (2) drained waste out of the waste tar pond lying below the bluff on which the
manufactured gas plant stood; (4) spread any contamination by its construction and
enlargement of the city waste water treatment center; (5) used or approved the open ditch
from the bottom of the bluff out to the bay; (6) allowed a lumber treatment facility to leak
wood treatment chemicals into Kreher Park; or (7) caused any contaminants to infiltrate
Kreher Park by allowing dumping and oil changing for municipal vehicles to take place there.
Plaintiff argues unpersuasively that the City could nevertheless be held liable for some of the

3

costs because it was found to be a “covered person” under the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. §§ 9601-75, but plaintiff overlooks
the difference between being a “covered person” under the statute, that is, someone who
owned or operated a contaminated site, and being a “responsible person,” that is, one who
has been found responsible for contributing to a site’s contamination and who is therefore
liable for the costs of the cleanup.
Defendant was the clear winner in this case. Thus, the only question is whether
defendant City is entitled to all of the costs awarded it by the clerk of court.

2. Amount of costs
As for plaintiff’s objections to particular costs approved by the clerk, most are without
foundation. The first relates to certain transcripts for the depositions of employees of
defendants Soo Line Railroad Company and Wisconsin Central, Limited and a separate
deposition of Jeffrey Bierl, a representative of defendant County. Plaintiff contends that the
City sought the depositions after it knew that the depositions were no longer reasonably
necessary because plaintiff had reached a settlement with the railroads. In addition, the
depositions related only to “the narrow issue of the Railroad[s]’ property rights at the site,”
and counsel for defendants City and County never asked a question during any of the five
depositions of the railroad employees.
It is odd that plaintiff would make this argument when it did not schedule the
depositions until after it had settled with the railroads. In any event, because the depositions

4

were scheduled by plaintiff, defendant City had the right to obtain transcripts, even if
plaintiff had obtained a tentative settlement with the railroads before the transcripts were
ordered. The railroads had asserted cross-claims against defendant City and it in turn had
asserted cross-claims against the railroads, seeking contribution from them in the event of
an award of damages against the City in favor of plaintiff. Certainly, in a case of this
magnitude, defendant was justified in obtaining the transcripts for its use in preparing a
defense, if not to plaintiff’s claims, then to the cross-claims of the railroads.
As to the Bierl deposition, plaintiff says his deposition revealed no information that
supported the City’s claims, but defendant City points out that he authenticated relevant
County documents relating to Schroeder Lumber. Schroeder’s possible responsibility for the
contamination was a key issue in the case. I agree with the clerk of court that the costs for
these transcripts ($1570.42) are allowable under Rule 54.
I agree also that defendant City should be reimbursed for the costs of video
depositions of Jerry Winslow and David Crass, even if those costs were duplicative of the
costs of paper depositions. As defendant City explained, it viewed these depositions as
necessary and reasonable for giving the court a sense of the deponents’ credibility and it
could not be sure that the time allotted for the trial by the court would be sufficient to put
these witnesses on the stand. In addition, Winslow was beyond the subpoena power of this
court and is plaintiff’s employee. Defendant could not be sure that he would be available
in person. As to Crass, defendant City wanted to preserve his testimony in video form,
again, so that the court could assess his credibility if the City chose to put in his testimony

5

by deposition rather than live. This was not an improper consideration.

The fact that

neither of the video recordings was used at trial is irrelevant; the decision to order the
recordings had to be made well in advance of trial. The $1,770 cost is allowable.
Plaintiff would like the court to cut $8,145.76 in costs for photocopies obtained by
defendant on the grounds that the need for the photocopies was not described adequately
and, in some cases, the costs are not recoverable under § 1920(a). Plaintiff has not shown
that the description was inadequate; detailed documentation of costs is not required. The
charge is allowable.
As to the extra travel expenses for Emily Greenwald, the additional expense was the
unfortunate consequence of the court’s illness and not of any lack of planning on this
defendant’s part. Those expenses were properly approved by the clerk.
Finally, defendant City defends the $6960 that it spent on converting documents to
electronic searchable format, saying that it was necessary to conform to the parties’
agreement that documents the parties produced in discovery would be produced in that
format. The clerk made the reasonable decision to cut the costs of this conversion in half
(from $13,920 to $6,900) because only about half of the converted documents were turned
over to plaintiff.

B. Defendant County
Plaintiff does not contend that defendant County has any responsibility for the
contamination of the site or that it was found to be a “covered person,” but does contend

6

that the clerk erred in awarding the costs he did. Plaintiff objects specifically to reimbursing
the County for what it calls “unnecessary deposition transcript orders” and for certain
copying and exemplification costs.
The supposedly unnecessary depositions are those of the railroad employees, seven
of city employees and two employees of Wilhelm Engineering, a company that had a project
in the vicinity of Kreher Park in the early 1980s. Plaintiff scheduled these depositions; the
County was a party to the lawsuit and had a clear right to attend each of them. The County
acted reasonably when it ordered copies of the depositions, even if plaintiff later reached a
settlement with the railroads or if it turned out that the depositions were not needed at trial.
As for the copying and exemplification costs, the County has provided a sufficiently
thorough explanation of the necessity and reasonableness of these costs, along with a
thorough documentation. It was proper for the clerk to approve those costs.

C. Conclusion
Plaintiff has failed to show that the clerk of court erred in any respect in approving
the costs incurred reasonably by defendant City and County. Accordingly, I decline to
reduce the claimed costs below the amounts determined by the clerk of court in dkts. ##
613 (order on defendant County’s bill of costs) and 615 (order on defendant City’s bill of
costs).

7

ORDER
IT IS ORDERED that plaintiff Northern States Power’s motions for court review of
taxable costs pursuant to Fed. R. Civ. P. 54(d)(1), dkts. ## 616 and 618 are GRANTED
and the clerk of court’s determinations of taxable costs are AFFIRMED over plaintiff’s
objections.
Entered this 5th day of January, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

8