Gordon v. Castle Oldsmobile & Honda, Inc.

157 F.R.D. 438, 1994 U.S. Dist. LEXIS 12037, 1994 WL 471412
CourtDistrict Court, N.D. Illinois
DecidedAugust 25, 1994
DocketNo. 92 C 6092
StatusPublished
Cited by4 cases

This text of 157 F.R.D. 438 (Gordon v. Castle Oldsmobile & Honda, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gordon v. Castle Oldsmobile & Honda, Inc., 157 F.R.D. 438, 1994 U.S. Dist. LEXIS 12037, 1994 WL 471412 (N.D. Ill. 1994).

Opinion

MEMORANDUM OPINION AND ORDER

LEINENWEBER, District Judge.

BACKGROUND

Plaintiff, Stewart Gordon, filed two motions for attorney’s fees pursuant to Federal Rules of Civil Procedure (“Fed.R.Civ.P.”) 37 before trial commenced. When those motions were filed, the court took them under advisement due to the fact that they might have ultimately been moot if plaintiff prevailed. Judgment was entered in the above entitled action on May 17,1994 against plaintiff. The clerk was requested to tax a total of $15,147.67 as costs in defendants’ Bill of Costs.

I. Motions for Attorney’s Fees

Plaintiff brought a motion to compel production of documents in response to his First Request for Production of Documents. The court granted that motion on December 18, 1992. On September 9, 1993, the court granted a similar motion to compel in response to plaintiffs Fifth Request for Production of Documents. Plaintiff made both motions pursuant to Fed.R.Civ.P. 37(a)(2).

Pursuant to Fed.R.Civ.P. 37(a)(4), the court finds that defendants, whose conduct necessitated the motion, owe plaintiff reasonable expenses incurred in obtaining the two Orders issued by the court, including attorney’s fees.

Plaintiff requested an award for 41 hours of attorney’s fees for the expenses incurred in obtaining the Orders. The court finds that plaintiffs request is unreasonable and has adjusted the expenses accordingly. For the first motion, the court awards plaintiff 4 hours of attorney’s fees at plaintiffs attorney, Karen Ward’s (“Ward”), 1992 hourly rate of $160.00 per hour. For the second motion, the court awards 4 hours of attorney’s fees at Ward’s 1993 hourly rate of $170.00 per hour. The total award for fees for 8 hours of work totals $1,320.00.

[440]*440II. Bill of Costs

Judgment was entered against plaintiff in this action on May 17, 1994. Defendants requested that plaintiff pay them $15,147.67 in its Bill of Costs. Under Fed.R.Civ.P. 54 the prevailing party in a suit may recover costs. The Fed.R.Civ.P. 54(d)(1) provides in pertinent part:

Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorney’s fees shall be allowed as of course to the prevailing party unless the court otherwise directs____ [C]osts may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.

The statutory basis for awarding costs is provided for in 28 U.S.C. § 1920, which states:

A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and marshall;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the ease;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers 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, and expenses, and costs of special interpretation services under section 1828 of this title.

“The losing party must satisfy a heavy burden when asserting that he should be excused from paying costs and affirmatively establish that the costs either fall outside the parameters of section 1920, were not reasonably necessary to the litigation, or that the losing party is unable to pay. See, e.g., Muslin v. Frelinghuysen Livestock Managers, 777 F.2d 1230, 1236 (7th Cir.1985).” Maj v. Nat’l Security Network, Inc., 1990 WL 114739, 1990 U.S.Dist. LEXIS 9455 (N.D.Ill.1990). The court addresses plaintiffs objections to defendants’ Bill of Costs as follows.

A. Bases for Denial of Costs

1. Financial Ability of Plaintiff to Pay Costs

A party seeking to avoid costs because of his supposed indigence must prove that indigence. McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir.1994). Furthermore, unsuccessful indigent litigants are not automatically shielded from the imposition of costs against them. Weaver v. Toombs, 948 F.2d 1004 (6th Cir.1991). Plaintiff has failed to produce any evidence which would establish that he is incapable of paying court-imposed costs at this time or in the future. Therefore, plaintiffs alleged indigence is not an appropriate basis for denying costs due to defendants.

2. Unreasonable Delay

Generally, misconduct by the prevailing party worthy of a penalty (i.e., calling unnecessary witnesses, raising unnecessary issues, or otherwise unnecessarily prolonging the proceedings) will suffice to justify the denial of costs. See, e.g., Muslin v. Frelinghuysen Livestock Managers, 111 F.2d 1230, 1236 (7th Cir.1985). However, the record in this case does not indicate evidence of any such misconduct by defendants. Plaintiff cites defendants’ changes of counsel and granted requests for continuances as evidence of misconduct. On the basis of these actions alone, the court is not persuaded that it should deny costs due to misconduct.

3. Plaintiffs Good Faith

Unless and until the losing party affirmatively shows that the prevailing party is not entitled to costs, the district court must award them “as of course.” Congregation of the Passion v. Touche, Ross & Co., 854 F.2d 219, 222 (7th Cir.1988) “The court’s discretion [to deny such an award] is limited by the presumption that exists in favor of awarding costs. Indeed, under Seventh Circuit precedent, the losing party cannot rebut this presumption merely by showing his good faith conduct in the litigation.” Popeil Bros., [441]*441Inc. v. Shick Electric, Inc., 516 F.2d 772, 775-76 (7th Cir.1975). In light of the Seventh Circuit’s holding in Popeil Bros., the court finds that plaintiffs argument that he acted in good faith vis-a-vis the litigation in this case is not sufficient to overcome the presumption in favor of awarding costs to defendants.

Plaintiff has not demonstrated that defendants are not entitled to costs. Therefore, the next issue before the court now concerns plaintiffs objections to specific items in defendants’ Bill of Costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brown v. Phillips (In Re Phillips)
379 B.R. 765 (N.D. Illinois, 2007)
Cress v. Recreation Services, Inc.
795 N.E.2d 817 (Appellate Court of Illinois, 2003)
Netherton v. Baker (In Re Baker)
206 B.R. 510 (N.D. Illinois, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
157 F.R.D. 438, 1994 U.S. Dist. LEXIS 12037, 1994 WL 471412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-castle-oldsmobile-honda-inc-ilnd-1994.