Whitford v. Gill
| Decision Date | 22 August 2019 |
| Docket Number | 15-cv-421-jdp |
| Citation | 402 F.Supp.3d 529 |
| Parties | William WHITFORD, Graham Adsit, Roger Anclam, Warren Braun, Hans Breitenmoser, Judith Brey, Brent Brigson, Emily Bunting, Sandra Carlson-Kaye, Guy Costello, Timothy B. Daley, Margaret Leslie DeMuth, Daniel Dieterich, Mary Lynne Donohue, Leah Dudley, Jennifer Estrada, Barbara Flom, Helen Harris, Gail Hohenstein, Wayne Jensen, Wendy Sue Johnson, Michael Lecker, Elizabeth Lentini, Norah McCue, Janet Mitchell, Deborah Patel, Jane Pedersen, Nancy Petulla, Robert Pfundheller, Sara Ramaker, Rosalie Schnick, Allison Seaton, James Seaton, Ann E. Stevning-Roe, Linea Sundstrom, Michael Switzenbaum, Jerome Wallace, Donald Winter, Edward Wohl, and Ann Wolfe, Plaintiffs, v. Beverly R. GILL, Julie M. Glancey, Ann S. Jacobs, Jodi Jensen, Dean Knudson, and Mark L. Thomsen, Defendants, and The Wisconsin State Assembly, Intervenor-Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
Nicholas Odysseas Stephanopoulos, University of Chicago Law School, Ruth Merewyn Greenwood, Annabelle Elizabeth Harless, Michele Louise Odorizzi, Mayer Brown LLP, Paul Strauss, Chicago Lawyers' Committee for Civil Rights Under Law, Chicago, IL, Peter Guyon Earle, Law Office of Peter Earle, LLC, Milwaukee, WI, Danielle Marie Lang, J. Gerald Hebert, U.S. Department of Justice, Mark P. Gaber, Campaign Legal Center, Washington, DC, Douglas Maynard Poland, Rathje & Woodward, LLC, Lester A. Pines, Pines Bach LLP, Madison, WI, for Plaintiffs.
Brian P. Keenan, Anthony David Russomanno, Clayton P. Kawski, Karla Z. Keckhaver, Wisconsin Department of Justice, Madison, WI, for Defendants.
Kevin Michael St. John, Bell Giftos St. John LLC, Madison, WI, Adam Mortara, Joshua Ackerman, Taylor A. R. Meehan, Bartlit Beck LLP, Chicago, IL, for Intervenor-Defendant.
Before the court are Defendants Wisconsin Election Commission members' Bill of Costs as well as Intervenor-Defendant Wisconsin State Assembly's Bill of Costs and motion for attorney's fees. For the reasons explained below, we deny the Assembly's motion for attorney's fees and decline to award costs to either defendant.
Plaintiffs, registered voters who support the election of Democratic candidates and the implementation of Democratic policies, filed this action against the members of the Wisconsin Election Commission (collectively, "WEC") asserting that Wisconsin's Assembly redistricting map constitutes an unconstitutional partisan gerrymander. Plaintiffs claimed that the Republican-controlled legislature created and enacted a redistricting plan ("Act 43") that systematically dilutes the voting strength of Democratic voters statewide. After a four-day trial, a majority of the court concluded that the redistricting plan embodied in Act 43 constituted an unconstitutional gerrymander. See Whitford v. Gill , 218 F. Supp. 3d 837 (W.D. Wis. 2016). The WEC appealed to the Supreme Court pursuant to 28 U.S.C. § 1253. The Court vacated this court's judgment and remanded the case to allow the court to address the issue of standing. Gill v. Whitford , ––– U.S. ––––, 138 S. Ct. 1916, 1932, 201 L.Ed.2d 313 (2018). On remand, the Wisconsin State Assembly moved for, and was granted, leave to intervene as an additional defendant.
On January 7, 2019, the defendants requested that the court stay the case pending the resolution of Rucho v. Common Cause , No. 18-422 (U.S.), and Lamone v. Benisek , No. 18-726 (U.S.), two cases pending before the Supreme Court that raised partisan gerrymandering claims. The court denied the stay and allowed discovery to proceed but rescheduled the trial to a date after which it anticipated that the Supreme Court would issue its decisions in Rucho and Lamone. Dkt. No. 42. On June 27, 2019, the Supreme Court held in Rucho v. Common Cause that "partisan gerrymandering claims present political questions beyond the reach of the federal courts." ––– U.S. ––––, 139 S. Ct. 2484, 2506–07, 204 L.Ed.2d 931 (2019). The parties thereafter moved to dismiss this case based on the Supreme Court's decision. On July 2, 2019, the court dismissed the suit without prejudice for lack of jurisdiction and entered judgment the following day. On July 15, 2019, the WEC filed a Bill of Costs, requesting a total of $19,308.59 in costs, and the Assembly filed a Bill of Costs requesting $45,043.40 in costs. The Assembly also filed a motion for attorney's fees.
The WEC and the Assembly both request their costs associated with this litigation. The Assembly contends it is entitled to costs as a prevailing party under Rule 54(d)(1) of the Federal Rules of Civil Procedure, which states in pertinent 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." The Rule "codifies a venerable presumption that prevailing parties are entitled to costs." Marx v. Gen. Revenue Corp. , 568 U.S. 371, 377, 133 S.Ct. 1166, 185 L.Ed.2d 242 (2013). Plaintiffs argue, on the other hand, and the WEC concedes, that requests for costs where, as here, a case is dismissed for lack of jurisdiction are controlled by 28 U.S.C. § 1919, which states, "Whenever any action or suit is dismissed in any district court, the Court of International Trade, or the Court of Federal Claims for want of jurisdiction, such court may order the payment of just costs." The WEC argues that it should be awarded its costs as a matter of justice under § 1919.
We agree with Plaintiffs and the WEC that the award of costs in this case is governed by § 1919. There was no judgment on the merits; the case was dismissed for lack of jurisdiction. By its plain language, § 1919 therefore applies. We also read § 1919, as has every other court to address the issue in a decision brought to our attention, as an exception to the presumption in favor of awarding costs to the prevailing party codified in Rule 54(d)(1). See, e.g., Otay Land Co. v. United Enters. Ltd. , 672 F.3d 1152, 1156 (9th Cir. 2012) (); Hygienics Direct Co. v. Medline Indus., Inc. , 33 F. App'x 621, 625 (3d Cir. 2002) (); Callicrate v. Farmland Indus., Inc. , 139 F.3d 1336, 1340 n.8 (10th Cir. 1998) (); see also, e.g. , U.S. ex rel. Atkinson v. Pa. Shipbuilding Co. , No. 94-7316, 2007 WL 4270622, at *2 (E.D. Pa. Dec. 3, 2007) (); Ohio Cas. Ins. Co. v. Reed , No. 1:04-cv-2027-DFH-WTL, 2006 WL 3240501, at *1 n.1 (S.D. Ind. Nov. 2, 2006) (); Ericsson GE Mobile Commcn's, Inc. v. Motorola Commcn's & Elecs., Inc. , 179 F.R.D. 328, 330 (N.D. Ala. 1998) ( ); Edward W. Gillen Co. v. Hartford Underwriters Ins. Co. , 166 F.R.D. 25, 27 (E.D. Wis. 1996) ( ). To hold otherwise would be to read § 1919 out of existence.
Notwithstanding this authority and the plain language of the statute, the Assembly maintains that § 1919 does not displace Rule 54(d)(1) and that it is entitled to costs under Rule 54(d). The Assembly's argument is predicated almost entirely on Marx v. General Revenue Corp. , 568 U.S. 371, 133 S.Ct. 1166, 185 L.Ed.2d 242 (2013). In Marx , the Supreme Court addressed the application of Rule 54(d) to the Fair Debt Collection Practices Act's ("FDCPA") remedial scheme. There, the district court found that Marx had failed to prove a violation of the FDCPA and awarded costs to the defendant pursuant to Rule 54(d)(1). The plaintiff moved to vacate the award of costs, arguing that § 1692k(a)(3) of the FDCPA set forth the exclusive basis for awarding costs in FDCPA cases. That section provides, in relevant part, "On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs." § 1692k(a)(3). Because it had not found the action was brought in bad faith, the plaintiff argued the court lacked any basis to award either attorney's fees or costs to the defendant. The district court denied the motion, finding that § 1692k(a)(3) did not displace its discretion to award costs under Rule 54(d)(1), and the Tenth Circuit affirmed.
The Supreme Court granted certiorari to address "whether a prevailing defendant in an FDCPA case may be awarded costs where the lawsuit was not brought in bad faith and for the purpose of harassment." 568 U.S. at 376, 133 S.Ct. 1166. In other words, the issue in Marx was whether a district court retains discretion to award statutory costs to the prevailing defendant under Rule 54(d)(1), notwithstanding the provision of the FDCPA allowing an award to the defendant of reasonable attorney's fees, as well as costs, upon a finding that the action was brought in...
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...1157. While seemingly open-ended, this standard reflects the broad discretion traditionally afforded trial courts in awarding costs. Id. In Whitford v. Gill, a three-judge panel ofthe Western District of Wisconsin applied § 1919 to determine "just costs" after dismissing a partisan gerryman......