Borom v. Town of Merrillville
| Decision Date | 09 March 2012 |
| Docket Number | Case No. 2:07–CV–98 JVB. |
| Citation | 857 F.Supp.2d 785 |
| Parties | Alfonso BOROM, et al., Plaintiffs, v. TOWN OF MERRILLVILLE, et al., Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
OPINION TEXT STARTS HERE
Elizabeth D. Tate, Robert L. Lewis & Associates, Gary, IN, G. Robert Blakey, University of Notre Dame, Notre Dame, IN, for Plaintiffs.
Michael J. Rappa, Steven A. Johnson, Johnson Rappa & Ivancevich LLC, Stephen Bower, Cohen & Thiros PC, James L. Clement, Jr., Lucas Holcomb & Medrea LLP, David E. Woodward, Casale Woodward & Buls LLP, Merrillville, IN, Joseph A. Giannelli, Otto J. Shragal, Cassiday Schade LLP, Jeffrey T. Kubes, Ryan T. Johnson, Thomas W. Mulcahy, Schuyler Roche & Crisham PC, Chicago, IL, Patrick A. Schuster, Crown Point, IN, for Defendants.
On Plaintiffs' Objections (DE 697, 698), the Court reviews the Bills of Costs submitted by the so-called Town Defendants 1 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 the 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.
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 230.) 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) ().
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.
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) ( ). 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 taxation, 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.
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) (); Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 427 (7th Cir.2000) (). 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) (). 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).
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). The only evidence Plaintiffs asked the Court to consider in this regard is a video recording that shows flooding and other water-related problems in their community. The Court accepts as true that Plaintiffs have faced, and may still experience, drainage issues. Yet the video does not show any conduct by the prevailing parties at all, much less the penalty-worthy kind that could justify a denial of costs. For the same reason, the Court overrules Plaintiffs' objections insofar as grounded in the doctrine of unclean hands.
Moving on, the Court notes the Town Defendants and Warmelink can recover their billed expenses, if at all, only as costs, because the Court has already denied their motions for attorneys' fees. (DE 655.) This means 42 U.S.C. § 1988(c), a provision for awards of expert fees “as part of the attorney's fee” in civil-rights cases, is off the table.
It was the only chance the parties ever had in this case to recover their experts' fees for non-testimonial advisory services. That's because such fees are not recoverable as costs—recall that 28 U.S.C. § 1920 exhausts all the classes of reimbursable costs. Crawford Fitting, 482 U.S. at 441, 107 S.Ct. 2494;Cefalu, 211 F.3d at 427. And the Supreme Court has explained: “None of the categories of expenses in § 1920 can reasonably be read to include fees for services rendered by an expert employed by a party in a nontestimonial advisory capacity.” W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 87, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991).
To be sure, “Congress legislatively overruled [another aspect of] Casey by amending § 1988 to provide that a court, in its discretion, may include expert fees as part of the attorney's fee award.” Zeigler Coal Co. v. Dir., Office of Workers' Comp. Programs, 326 F.3d 894, 900 n. 2 (7th Cir.2003) (citing Pub.L. 102–66, § 113(a)(2), codified at 42 U.S.C. § 1988). But Congress has done nothing to make experts' fees for nontestimonial work available for recoupment as costs. The Town Defendants therefore do not recover as costs the $6,620 they paid for “engineering services.” (DE 625–4.) Likewise, with a small exception discussed below, Warmelink does not recover as costs his $54,424.16 in expert fees from Christopher B. Burke Engineering. (DE 628.)
With that background, the Court can proceed to assess individually the categorical recoverability, necessity, and reasonableness of the rest of the Town Defendants' and Warmelink's billed charges.
The Town Defendants seek a total of $54,357.68 (Town Defs.' Bill of Costs, DE 625, at 1), classifying them as follows:
+-------------------------------------------------------+
¦• Deposition transcripts ( id. at 3): ¦$29,057.96; ¦
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¦• Witnesses' fees ( id. at 5): ¦$1,050.00; ¦
+-----------------------------------------+-------------¦
¦• Photocopying ( id. at 6):...To continue reading
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