Opinion
CAUSE NO. NA 00-133-C H/K
February 26, 2002
ENTRY ON DEFENDANTS' BILLS OF COSTS AND UNION DEFENDANT'S PETITION FOR ATTORNEY FEE AWARD
On December 14, 2001, the court granted defendants' motions for summary judgment and entered final judgment in favor of defendants Visteon, L.L.C. and Local 907 of the International Union of Electronic Workers. Both Visteon and the union have submitted a bill of costs, which plaintiff Leysa Davis opposes. In addition, the union has petitioned for an award of its attorney fees incurred in this action. As explained below, the court denies both defendants' requests solely because plaintiff Davis simply cannot afford to pay any portion of the amounts requested, nor is there any prospect that she could do so in the foreseeable future.
I. Visteon's Bill of Costs
Defendant Visteon has submitted a bill of costs seeking $2,880.95 in costs under Fed.R.Civ.P. 54(d) and 28 U.S.C. § 1920. Under Rule 54(d)(1) of the Federal Rules of Civil Procedure, a prevailing party is entitled to an award of costs other than attorney fees "as of course." The Seventh Circuit has described the effect of Rule 54(d)(1) as creating a presumption in favor of costs, and a presumption that is "difficult to overcome." Congregation of the Passion, Holy Cross Province v. Touche, Ross Co., 854 F.2d 219, 221-22 (7th Cir. 1988); accord, Contreras v. City of Chicago, 119 F.3d 1286, 1295 (7th Cir. 1997). A losing party's good faith in pursuing a claim or defense does not defeat the presumption, see Muslin v. Frelinghuysen Livestock Managers, 777 F.2d 1230, 1236 (7th Cir. 1985), although a showing of bad faith could certainly weigh in favor of awarding costs. There is no indication that plaintiff Davis acted in bad faith in pursuing this action against Visteon.
The presumption in favor of awarding costs may be overcome if the losing party is unable to pay the costs or if the prevailing party engaged in some "misconduct" worthy of a penalty. Congregation of the Passion, 854 F.2d at 222. There is no evidence of such misconduct in this case, but Ms. Davis contends she is unable to pay the sum sought by Visteon. She has supported that contention with an affidavit about her financial status.
"[T]he inability to pay is a proper factor to be considered in granting or denying taxable costs," and the presumption that costs are to be awarded to the prevailing party "may be overcome by a showing of indigency." Badillo v. Central Steel Wire Co., 717 F.2d 1160, 1165 (7th Cir. 1983), superseded in part by statute on other grounds.
Plaintiff Davis plainly cannot afford to pay Visteon's bill of costs. Adding another $2,880.95 to her existing debts would only add one more unsecured and unpayable debt to the pile, and it could not be paid in the foreseeable future. Davis' detailed affidavit is backed up with copies of court documents showing dire financial straits. She is working a part-time, low-wage job. She has substantial debts and no substantial assets. Adding insult to injury, as a result of her ex-husband Dusty's bankruptcy filing, Ms. Davis is now solely liable for more than $20,000 owed on vehicles the couple previously owned. The court finds that Ms. Davis is unable to pay a cost award in this case and therefore denies Visteon's bill of costs.
II. The Union's Petition for Attorney Fees and Bill of Costs
Local 907 has petitioned for attorney fees under 42 U.S.C. § 2000e-5(k) and 42 U.S.C. § 1988 and also has submitted a bill of costs. Like Visteon, Local 907 was also a prevailing party. The union seeks a fee award of $9,720 and $1,147.10 in costs.
Attorney fees may be awarded to a defendant who is the prevailing party in a case under Title VII if the district court finds that the plaintiff's action was "frivolous, unreasonable or groundless, or that the plaintiff continued to litigate after it clearly became so." Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978); see also Monroe v. Children's Home Ass'n, 128 F.3d 591, 594 (7th Cir. 1997) (defendants in Title VII action can recover attorney fees if plaintiff's claim is frivolous). In awarding such fees the district court need not find that the plaintiff brought the action in bad faith. Christianburg Garment, 434 U.S. at 421.
The union has established sufficient grounds for a fee award under Title VII. The union moved for summary judgment on the grounds, among others, that the plaintiff had not filed her complaint within 90 days after receiving the EEOC right to sue letter. The union advised plaintiff's counsel of this defense before filing the motion for summary judgment and invited plaintiff to dismiss voluntarily her claims against the union. She did not do so. She also did not even respond to the union's motion for summary judgment, let alone offer a plausible reason for overlooking her clear failure to file a timely claim.
In response to the union's fee petition, plaintiff Davis and her attorneys have offered no defense as to the reasonableness of their pursuit of the claim against the union. In addition, they have not challenged the reasonableness of the fee award the union seeks. Their response is only that Davis herself cannot pay the fee award.
The Seventh Circuit has instructed district courts considering an equitable fee award to a prevailing defendant under § 1988 to consider the relative wealth of the parties and the plaintiff's ability to pay. Munson v. Friske, 754 F.2d 683, 697 (7th Cir. 1985). Other circuits have applied that same standard to fee awards to prevailing defendants under Title VII. See Gibbs v. Clements Food Co., 949 F.2d 344, 345 (10th Cir. 1991); Miller v. Los Angeles County Bd. of Educ., 827 F.2d 617, 621 (9th Cir. 1987) ("award should not subject the plaintiff to financial ruin"); Alizadeh v. Safeway Stores, Inc., 910 F.2d 234, 239 (5th Cir. 1990) ("Setting an attorneys' fees award that is clearly wholly beyond any present or prospective ability of the losing party to pay has little tendency to advance section 1988's general goal of compensating the prevailing party for legal expenses incurred as a result of the litigation."); Arnold v. Burger King Corp., 719 F.2d 63, 68 (4th Cir. 1983) ("The policy of deterring frivolous suits is not served by forcing the misguided Title VII plaintiff into financial ruin simply because he prosecuted a groundless case."); Faraci v. Hickey-Freeman Co., Inc., 607 F.2d 1025, 1028-29 (2d Cir. 1979).
Applying this law to this case, in light of the detailed showing of plaintiff's financial straits, discussed above, the court finds that plaintiff Davis cannot afford to pay any attorney fee in this case. For that reason, and for that reason alone, the court denies the union's petition for a fee award. The court also denies the union's bill of costs because of Davis' inability to pay.
The union did not send a "21-day" letter under Fed.R.Civ.P. 11(c)(1), which might have provided a foundation for holding plaintiff's attorneys personally liable for the union's attorney fees.
So ordered.