Thorncreek Apartments I, LLC v. Vill. of Park Forest

• Decision Date: 11 June 2015
• Docket Number: 08 C 1225,Nos. 08 C 869,08 C 4303.,s. 08 C 869
• Citation: 123 F.Supp.3d 1012
• Parties: THORNCREEK APARTMENTS I, LLC, Thorncreek Apartments II, LLC, and Thorncreek Apartments III, LLC, Plaintiffs, v. VILLAGE OF PARK FOREST, an Illinois municipal corporation, Tom Mick, in his individual capacity and as Village Manager, Mae Brandon, in her individual capacity and as Village Trustee, Bonita Dillard, in her individual capacity and as Village Trustee, Gary Kopycinski, in his individual capacity and as Village Trustee, Kenneth W. Kramer, in his individual capacity and as Village Trustee, Robert McCray, in his individual capacity and as Village Trustee, Georgia O'Neill, in her individual capacity and as Village Trustee, Lawrence Kerestes, in his individual capacity and as Village Director of Community Development, John A. Ostenburg, in his individual capacity and as Mayor of the Village of Park Forest, and Sheila McGann, in her capacity as Village Clerk, Defendants.
• Court: U.S. District Court — Northern District of Illinois

123 F.Supp.3d 1012

THORNCREEK APARTMENTS I, LLC, Thorncreek Apartments II, LLC, and Thorncreek Apartments III, LLC, Plaintiffs,

v.VILLAGE OF PARK FOREST, an Illinois municipal corporation, Tom Mick, in his individual capacity and as Village Manager, Mae Brandon, in her individual capacity and as Village Trustee, Bonita Dillard, in her individual capacity and as Village Trustee, Gary Kopycinski, in his individual capacity and as Village Trustee, Kenneth W. Kramer, in his individual capacity and as Village Trustee, Robert McCray, in his individual capacity and as Village Trustee, Georgia O'Neill, in her individual capacity and as Village Trustee, Lawrence Kerestes, in his individual capacity and as Village Director of Community Development, John A. Ostenburg, in his individual capacity and as Mayor of the Village of Park Forest, and Sheila McGann, in her capacity as Village Clerk, Defendants.

Nos. 08 C 869

08 C 1225

08 C 4303.

United States District Court, N.D. Illinois, Eastern Division.

Signed June 11, 2015.

Andrew W. Mychalowych, Meghan Wright Cassidy, Siciliano Mychalowych & Van Dusen, PLC, Farmington Hills, MI, Dirk L. Van Beek, Dirk Van Beek Attorney At Law, Tinley Park, IL, for Plaintiff.

Michael Russell Hartigan, Patrick Halpin O'Connor, Hartigan & O'Connor P.C., Nikoleta Lamprinakos, Rachel Ellen Lutner, Robbins Schwartz Nicholas Lifton & Taylor Ltd., Chicago, IL, Todd Kenneth Hayden, Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Joliet, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

GARY FEINERMAN, District Judge.

The history of these consolidated cases is set forth in the recent opinion resolving the parties' various post-trial motions. Doc. 435 (reported at 2015 WL 2444498 (N.D.Ill. May 20, 2015) ). Familiarity with that opinion and its naming conventions is assumed, and, as before, all docket entries are from Case 08 C 1255. Now before the court are the parties' dueling bills of costs under Federal Rule of Civil Procedure 54(d)(1) and 28 U.S.C. § 1920. Thorncreek seeks $176,006.74 in costs from the Village of Park Forest, Tom Mick, and Lawrence Kerestes, the three defendants found liable by the jury. Doc. 386. Defendants seek $177,003.60 in costs from Thorncreek. Doc. 387. For the following reasons, both bills of costs are overruled, and each side shall bear its own costs.

Rule 54(d)(1) provides, in relevant part: "Unless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party." Fed.R.Civ.P. 54(d)(1). This Rule "creates a presumption in favor of awarding costs to the prevailing party." Myrick v. WellPoint, Inc., 764 F.3d 662, 666 (7th Cir.2014). But like most presumptions, this one can be overcome—particularly in so-called "mixed result" or "mixed outcome" cases, where each side prevails in some respects and not others, and where the district court has wide discretion to deny costs to both sides. See Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075 (7th Cir.1999) ("courts have especially broad discretion to award or deny costs in mixed result cases"); FASA Corp. v. Playmates Toys, Inc., 108 F.3d 140, 144 (7th Cir.1997) ("costs ... are normally awarded to the prevailing party as a matter of course, unless exceptional circumstances are present ... or unless the case has a mixed outcome"); Testa v. Vill. of Mundelein, 89 F.3d 443, 447 (7th Cir.1996) ("Considering the mixed outcome of the civil rights and malicious prosecution claims, the decision requiring each party to bear its own costs is within [the district court's] discretion."); Estate of Hevia v. Portrio Corp., 602 F.3d 34, 46 (1st Cir.2010) ("In situations in which one party prevails on some claims and the other party prevails on other claims, the litigants are commonly ordered to bear their own costs."); Amarel v. Connell, 102 F.3d 1494, 1523 (9th Cir.1996) ("In the event of a mixed judgment, however, it is within the discretion of a district court to require each party to bear its own costs."); see also Exxon Valdez v. Exxon Mobil, 568 F.3d 1077, 1081 (9th Cir.2009) ("In this case, neither side is the clear winner. The defendant owes the plaintiffs $507.5 million in punitives—according to counsel at oral argument the fourth largest punitive damages award ever granted. Yet that award represents a reduction by 90% of the original $5 billion. In light of this mixed result, and mindful that the equities in this case fall squarely in favor of the plaintiffs—the victims of Exxon's malfeasance—we exercise our discretion by requiring each party to bear its own costs.") (applying Fed. R.App. P. 39(a)(4) ).

Thorncreek lost several of its claims at summary judgment: its state and federal due process and takings claims in their entirety; its claims against the individual defendants in their official capacities; its Illinois Civil Rights Act ("ICRA") claim against the individual defendants in their personal capacities; and its claims against Sheila McGann. 970 F.Supp.2d 828, 845–49 (N.D.Ill.2013). At trial, Thorncreek lost outright on all of its claims against seven of the ten remaining defendants; lost outright on its equal protection/race, 42 U.S.C. § 1986, and ICRA claims; and prevailed against the three other defendants on only its equal protection/class-of-one claim (against the Village and Mick) and its 42 U.S.C. § 1985(3) claim (against Mick and Kerestes), obtaining $2,014,002.00 in compensatory and nominal damages and $6,000.00 in punitive damages. Doc. 372. The court's ruling on the post-trial motions eliminated Thorncreek's victory on the § 1985(3) claim, vacated $1,000.00 of the punitive damage award (the portion attributable to Kerestes, who was no longer liable on any claim), entered judgment for Kerestes, denied Thorncreek's motion for a new trial on damages, and awarded Thorncreek $501,032.88 in prejudgment interest. 2015 WL 2444498, at *11.

When all was said and done, Thorncreek prevailed on just one of several claims against just two of the eleven defendants, and received just over $2 million in compensatory damages, plus prejudgment interest, and $5000.00 in punitive damages; Thorncreek had asked the jury for about ten times as much in compensatory damages and over one hundred times as much in punitive damages, and felt so strongly that the compensatory damage award was insufficient that it moved for a new trial on damages. Nine of the eleven defendants prevailed across the board against Thorncreek. All of the plaintiffs (recall that each of these three suits involves different Thorncreek entities) share materially identical interests and can be considered one "side," and the same can be said for the eleven defendants (the Village and ten of its officials, who jointly filed briefs and other pleadings throughout the case and who jointly examined the witnesses and delivered closing arguments at trial). As explained below, the outcome certainly qualifies as a "mixed result" within the meaning of the mixed result cases.

Thorncreek and Defendants each assert that they and they alone are the prevailing parties under Rule 54(d)(1). Doc. 395 at 4 ("After viewing the verdict as a whole, Defendants are the prevailing parties"); Doc. 399 at 8 ("The Plaintiffs have prevailed on the most significant and central issues in their case."). "A party prevails for purposes of Rule 54(d) when a final judgment awards it substantial relief." Smart v. Local 702 IBEW, 573 F.3d 523, 525 (7th Cir.2009). Although its success was limited, Thorncreek is a Rule 54(d)(1) prevailing party against Mick and the Village; $2 million is a substantial sum, and punitive damages in any amount are a substantial rebuke. See Slane v. Mariah Boats, Inc., 164 F.3d 1065, 1068 (7th Cir.1999) (affirming the district court's award of costs to the plaintiff, reasoning: "Mariah argues that the court erred in awarding costs to Slane because Slane did not ‘prevail’ in the suit; rather, Slane won two claims and Mariah won two. The district court correctly noted that when one party gets substantial relief it ‘prevails' even if it doesn't win on every claim. Slane got $225,000 from the jury. By any definition, he won the battle. The court's conclusion that Slane prevailed was more than reasonable.") (citation omitted). At the same time, the nine other defendants prevailed against Thorncreek, which makes them Rule 54(d)(1) prevailing parties.

Where a plaintiff prevails against some defendants but loses against others, one option is to tax the plaintiff's costs to the losing defendants and the winning defendants' costs to the plaintiff. See Perlman v. Zell, 185 F.3d 850, 858–59 (7th Cir.1999) (stating that, although the court "cannot say that an award of costs in [plaintiff's] favor is forbidden," "[f]ive defendants have prevailed outright ... [and] are entitled to recover their own costs of defense" from the plaintiff). A simpler option is for the parties to bear their own respective costs, and that is the better option where, as here, it is impossible to disentangle and allocate the costs expended by either side as between the prevailing and non-prevailing defendants.

The point is illustrated by Israel Travel Advisory Service, Inc. v. Israel Identity Tours, Inc., 61 F.3d 1250 (7th Cir.1995), which affirmed the district court's ordering the parties to bear their own costs where the plaintiff "prevailed ..., but only in part." Id. at 1261. The Israel Travel plaintiff succeeded against one defendant, but it "lost outright" against another and lost to a third "in advance of trial." Ibid. In addition, the plaintiff "peppered the judge with woebegone theories ... [which] took up time and [the defendant's] money without producing anything in return." Ibid. "Under the circumstances," the Seventh Circuit reasoned, "declining to shift costs was a wise decision." Ibid. Similarly, in Testa v. Village of Mundelein, supra, the plaintiff sued several Mundelein police offers for unlawful arrest and the Village of...