Borom v. Town of Merrillville

857 F. Supp. 2d 785, 2012 WL 830409, 2012 U.S. Dist. LEXIS 31833
CourtDistrict Court, N.D. Indiana
DecidedMarch 9, 2012
DocketCase No. 2:07-CV-98 JVB
StatusPublished
Cited by3 cases

This text of 857 F. Supp. 2d 785 (Borom v. Town of Merrillville) is published on Counsel Stack Legal Research, covering District Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borom v. Town of Merrillville, 857 F. Supp. 2d 785, 2012 WL 830409, 2012 U.S. Dist. LEXIS 31833 (N.D. Ind. 2012).

Opinion

OPINION and ORDER

JOSEPH S. VAN BOKKELEN, District Judge.

On Plaintiffs’ Objections (DE 697, 698), the Court reviews the Bills of Costs submitted by the so-called Town Defendants1 and John Warmelink (DE 625, 628) after they prevailed on the summary judgment of Plaintiffs’ cause of action under 42 U.S.C. § 1983. The Court concludes the Town Defendants and Warmelink should recover many, but not all, of their billed expenses. Plaintiffs have not overcome [787]*787the strong presumption in favor of awarding prevailing parties their costs. Many of the charges the Town Defendants and Warmelink seek to recoup are within the statutorily authorized categories, 28 U.S.C. § 1920 (2006), and Plaintiffs failed, for the most part, to surmount the prevailing parties’ evidence that the costs were necessary and reasonable. Plaintiffs’ unclean-hands argument also fails. But some of the expenses the Town Defendants and Warmelink have sought are not reimbursable as costs, and others are lacking in evidentiary support, so the Court does not award the Bills of Costs in full.

A. Background

Even the docket-entry count, totaling over 700, attests to the long and bitter flavor of this litigation. Plaintiffs are twenty-one non-white residents of the Innsbrook subdivision in Merrillville. (Second Am. Compl., DE 280.) They sued the Town Defendants and Merrillville’s engineer, John Warmelink, over poor drainage, problems related to a pond and nearby construction, and other issues affecting Plaintiffs’ residential real properties.

Plaintiffs contended their injuries were caused in part by infringement of their Fourteenth Amendment right to race-neutral equal protection of the laws. They moved for summary judgment on no less than twelve issues. But on Defendants’ motions for summary judgment, Plaintiffs could not establish the existence of a similarly situated group of whites that the prevailing parties had treated differently. That was an essential showing for the § 1983 case, so the Court entered summary judgment in favor of the Town Defendants and Warmelink. On Plaintiffs’ appeal, the Seventh Circuit affirmed the summary judgment against them. Harvey v. Town of Merrillville, 649 F.3d 526, 531-32 (7th Cir.2011) (explaining Plaintiffs failed to identify “any admissible evidence” that the residents of the ostensible comparator community were of a different race).

After granting the Town Defendants’ and Warmelink’s motions for summary judgment, this Court denied both of them attorneys’ fees (Apr. 19, 2011, Order, DE 655), but awarded costs of $54,357.68 to the Town Defendants (DE 661) and $61,911.62 to Warmelink (DE 659). Because the Clerk had not filed a notice of taxation, however, Plaintiffs never received the ordinary opportunity to object to the Bills of Costs. For that reason, the Court granted Plaintiffs’ motions to alter judgment (DE 662, 665) and vacated the judgment for costs. (Aug. 16, 2011, Order, DE 692.) The Court further ordered the Clerk to file a notice of taxation of the Town Defendants’ and Warmelink’s Bills of Costs. (Id.) The Clerk did so on August 16, 2011 (DE 693, 694), and then taxed the costs on August 29, 2011 (DE 695, 696). Plaintiffs objected on September 1, 2011 (DE 697, 698), and these Defendants responded (DE 700, 704), arguing in part that Plaintiffs’ objections were late.

B. Analysis

1. Did Plaintiffs Object On Time?

A losing party can object to the winner’s bill of costs, but not more than 7 days after the clerk of the court has taxed the costs. 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.”). Plaintiffs filed the Objections at issue (DE 697, 698) only 3 days after the Clerk taxed the challenged costs (DE 695, 696), so they were not late.

Warmelink and the Town Defendants argue Plaintiffs had to object within 7 days of the notice of taxation. But the 7-day period described in Rule 54(d)(1) does not begin until the actual event of [788]*788taxation, which can occur no sooner than 14 days after the notice. This is the most natural reading of Rule 54. Efficiency and common sense also favor this construction — odd it would be to delay the Clerk’s power to tax costs for 7 days after the window for objecting has closed.

Warmelink and the Town Defendants interpret also the Court’s August 16, 2011, order to start the 7-day period with the notice, rather than the event of taxation itself. The Court disagrees and finds Plaintiffs’ objections timely under the Rule because Plaintiffs filed them within 7 days after the event of taxation.

2. What Expenses, If Any, Should the Town Defendants and Warmelink Recover As Costs?

The Court must resolve several subsidiary issues to determine the merit of Plaintiffs’ objections to the Town Defendants’ and Warmelink’s Bills of Costs: First, did Plaintiffs overcome the “strong presumption” in favor of costs awards to prevailing parties,2 such that the Court should deny the Town Defendants and Warmelink the prospect of recovering costs outright?3 If not, does 28 U.S.C. § 1920 authorize the recovery, as a cost, of each expense billed? See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987) (allowing taxation of only those costs specified by the statute); Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 427 (7th Cir.2000) (explaining further Crawford Fitting’s limitation). Next, was it reasonably necessary at the time to incur each statutorily reimbursable cost? E.g., Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 455 (7th Cir.1998) (making clear that absolute necessity is not the issue). Finally, the Court verifies the reasonableness of the amount of each recoverable and necessary cost. Majeske v. City of Chi., 218 F.3d 816, 824 (7th Cir.2000).

a. Resolution of Issues Common to Both Bills of Costs

First, the Court concludes Plaintiffs did not overcome the “strong presumption” in favor of awarding the prevailing parties’ costs to the extent they are statutorily authorized, necessary, and reasonable. Generally, only the losing party’s inability to pay or penalty-worthy misconduct by the billing party can justify denying costs wholesale. Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 945 (7th Cir.1997).

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Cite This Page — Counsel Stack

Bluebook (online)
857 F. Supp. 2d 785, 2012 WL 830409, 2012 U.S. Dist. LEXIS 31833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borom-v-town-of-merrillville-innd-2012.