Opinion
Case No. C2-03-466.
March 21, 2007
OPINION AND ORDER
This matter is before the Court on Plaintiff's Memorandum opposing the Clerk's award of costs to Defendant.
After reviewing Defendant's Bill of Costs, the Clerk of this Court determined that Defendant, as the prevailing party, was entitled to the payment of certain costs by the Plaintiff pursuant to 28 U.S.C. § 1920. The Clerk awarded Defendant costs in the amount of $3,162.25. In its Motion, Plaintiff asks this Court to reverse the Clerk's award of costs to Defendant.
28 U.S.C. § 1920 provides in pertinent part that:
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case.
Fed.R.Civ.P. 54(d)(1) provides that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs[.]" The Sixth Circuit has held that this rule creates a presumption in favor of awarding costs, but allows the trial court to deny costs at its discretion. Knowlogy, Inc. v. Insight Communications Co., 460 F.3d 722, 726 (6th Cir. 2006).
Trial courts must base their decision to award or deny costs on factors enumerated in White White, Inc. v. American Hospital Supply Corp., 786 F.2d 728 (6th Cir. 1986). The White White factors, which were recently affirmed in Knowlogy, 460 F.3d at 729, were more clearly restated in question form by this Court in Rosser v. Pipefitters Union Local 392, 885 F. Supp. 1068, 1071-72 (S.D. Ohio 1995). The factors a court must take into account when awarding or denying costs are:
a) Were the taxable expenditures unnecessary to the case or unreasonably large?
b) Should the prevailing party be penalized for unnecessarily prolonging trial or for injecting unmeritorious issues?
c) Was the prevailing party's victory so insignificant that the judgment amount to a victory for the opponent?
d) Was the case close and difficult?
e) Did the losing party act reasonably and in good faith in filing, prosecuting or defending the case?
f) Did the losing party conduct the case with propriety?
g) Have other courts denied costs to prevailing defendants in similar cases? h) Did the prevailing party benefit from the case?
I) Did the public benefit from the case?
j) Did the case result in a profound reformation of current practices by defendant?
k) Does the award of costs have a chilling effect on other litigants?Id.
Additionally, courts in the Sixth Circuit may not consider the size of the prevailing party's recovery or the ability of the prevailing party to pay his own costs. White White, 786 F.2d at 730. The court may, however, consider the losing party's indigency. Singleton v. Smith, 241 F.3d 534, 539 (6th Cir. 2001).
Applying the factors above to the facts of this case, this Court finds that the costs claimed were not unnecessarily large. Defendant is claiming costs related to depositions that were necessarily related to Plaintiff's claims at the time they existed. Plaintiff is correct to argue that Defendant's witness costs for two witnesses whose depositions were not used should be disallowed; the Clerk's calculation excludes these costs.
There was no evidence that Defendant prolonged the proceedings or injected unmeritorious issues into the proceedings. Defendant's victory was significant, and the final judgment did not amount to a victory for Plaintiff.
When the Court determines "whether the case was close or difficult, the fact that the case was or was not frivolous is not the relevant standard." Akridge v. Wilkinson, 2006 U.S. Dist. LEXIS 78164, at *4 (S.D. Ohio Oct. 26, 2006) citing Goostree v. Tennessee, 796 F.2d 854, 864 (6th Cir. 1986). The closeness of the case is judged by "the refinement of perception required to recognize, sift through and organize relevant evidence, and by the difficulty of discerning the law of the case." White White, 786 F.2d at 732-33. This case was not close or difficult factually; the facts were largely undisputed, and the case was resolved by summary judgment, under established principles of law, without a trial. The judgment was appealed and affirmed. This case was not close or difficult.
The losing party, Plaintiff, cannot be said to have acted unreasonably or in bad faith in initially bringing the case. It cannot be said, however, that Plaintiff conducted the case with propriety. As Plaintiff conceded in his January 6, 2005 Notice of Incorrect Factual Representations to the Court, his last day of work with a subsequent employer after being discharged from Honda actually was June 20, 2004, and his employment relationship terminated on June 23, 2004, but he attested that he was still employed in an affidavit filed on July 27, 2004.
This Court denied Defendant's motion for sanctions relating to the factual misrepresentation on May 15, 2005. Whether the incorrect factual assertion rises to the level of impropriety necessary to preclude an award of costs is irrelevant to the instant motion, because "[g]ood faith without more, however, is an insufficient basis for denying costs to a prevailing party." Id. at 733.
The next factor is whether other courts have denied costs to prevailing parties in similar cases. Plaintiff cites three cases, but there are obvious circumstances that distinguish each case. In Rosser, the court specifically found that the case was close and difficult, the parties acted in good faith and with propriety, and the defendants "received a great benefit" from the litigation even though they prevailed. Rosser, 885 F. Supp. at 1072. In this case, the Court found that Plaintiff did not act with propriety and that Defendant did not receive any benefit from the litigation.
Williams v. Hevi-Duty Elec. Co., 122 F.R.D. 206 (E.D. Tenn. 1988) involved a plaintiff who brought a race discrimination claim against her employer. This case is not similar factually; in the present case, Plaintiff adduced no evidence of discrimination. Moreover, the law applied in Williams was different also. The award of costs was made under 42 U.S.C. §§ 1981 and 2000e, and the award of costs in the instant case was made under Rule 54. Williams, 122 F.R.D. at 210; see also Hildebrandt v. Hyatt Corp., 2006 U.S. Dist. LEXIS 78163 (S.D. Ohio Oct. 26, 2006) (reaching similar conclusion that award under § 2000e does not apply to costs taxed under Rule 54). Allstate Ins. Co. v. Michigan Carpenter's Council Health Welfare Fund, 760 F. Supp. 665 (W.D. Mich 1991) is also inapposite. In that case, the decision was founded on the closeness and difficulty of a legal issue which was the subject of Sixth Circuit precedent the Supreme Court subsequently overruled. In this case, no close legal issue existed.
The next factors are whether the prevailing party benefitted from the case, whether the public benefitted from the case, or whether the case resulted in a profound reformation of current practices by the defendant. Here, there is no evidence that Defendant, despite prevailing, benefitted from Plaintiff's action. This case began in May 2003 and is still going on nearly four years later. Rather than benefitting from the action, Defendant has suffered from the distraction and cost of defending itself against this action. This was also not a case of any substantial public interest, nor has Defendant "profoundly" reformed its current practices, even if the allegations Plaintiff makes in his memorandum opposing the taxation of costs are taken as true.
Plaintiff alleges that, although he "is relatively sure that Honda will not admit it," Defendant now allows twenty-one days to return written requests for the medical certification of an absence. Such a change in procedure would not even have been admissible in this case under Federal Rule of Evidence 407 (subsequent remedial measures).
The award of $3,162.25 in costs, in comparison to the substantial cost of attorney fees necessary to bring an action in this Court and the Court of Appeals, will not have a chilling effect on other litigants significant enough to overturn the usual presumption that costs be taxed to the losing party.
Finally, Plaintiff does not assert indigency as the reason for avoiding taxation of costs.
For the reasons stated above, this Court DENIES Plaintiff's motion opposing the taxation of costs. Costs in the amount of $3,162.25 are to be taxed to Plaintiff.