Opinion
Case No. C2-99-1054.
March 27, 2006
ORDER
This case is before the Court pursuant to Plaintiff's timely Motion to Review and Deny Bill of Costs. Previously, the Clerk entered a Memorandum on Costs granting Defendant's Bill in the amount of $6350.08 for court reporter fees and witness fees, and disallowing $683.91 in expenses related to exemplification, certification and copies of papers. Plaintiff does not contend that she is unable to pay, that the expenses for which Defendant seeks to recover are improper costs, or that the Clerk inaccurately calculated and taxed them. Instead, Plaintiff requests that the Court, in its discretion, deny all costs to Defendant as it would be inequitable under the circumstances to award the costs against her as the losing party.
Defendant, Honda of America Manufacturing, Inc., seeks reimbursement for costs associated with seventeen depositions, thirteen of which Plaintiff sought and four of which it sought.
Honda seeks witness fees for three witnesses in the amount of $120 when the actual costs associated with these witnesses exceeds $4600.
This Court, in its Opinion and Order granting summary judgment, and the Sixth Circuit, on appeal, have extensively set forth the facts of this case. The Court therefore will not reproduce the history herein except as necessary in the context of addressing the parties' arguments.
Federal Rule of Civil 54(d)(1) provides as follows:
(1) Costs Other than Attorneys' Fees.
Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs. . . .
This Rule is not a rigid one, as described by the Supreme Court in Crawford Fitting Co. v. J.T. Gibbons, 482 U.S. 437, 441-42 (1987): "Rule 54(d) generally grants federal courts discretion to refuse to tax costs in favor of the prevailing party." Rule 54(d), however, creates a presumption in favor of awarding costs to a prevailing party. White White, Inc. v. American Hosp. Supply Co., 786 F.3d 728, 730 (6th Cir. 1986); Singleton v. Smith, 241 F.3d 534, 539 (6th Cir. 2001).
An unsuccessful party has the burden of proving circumstances sufficient to overcome this presumption in favor of costs to the prevailing party. Goostree v. State of Tennessee, 796 F.2d 854, 863-64 (6th Cir. 1986). Because Rule 54(d) establishes a "norm of action" entitling the prevailing party to his or her costs as a matter of course, a district court's discretion to depart from the Rule to deny costs is more limited than it would be if the Rule were merely "nondirective." Id. at 731-32.
Supreme Court has cautioned that the exercise of discretion in awarding or denying costs under Rule 54(d) is not wholly unbridled:
We do not read that Rule [Fed.R.Civ.P. 54(d)] as giving district judges unrestrained discretion to tax costs to reimburse a winning litigant for every expense he has seen fit to incur in the conduct of this case. Items proposed by winning parties as costs should always be given careful scrutiny. Any other practice would be too great a movement in the direction of some systems of jurisprudence, that are willing, if not indeed anxious, to allow litigation costs so high as to discourage litigants from bringing lawsuits, no matter how meritorious they might in good faith believe their claims to be. Therefore, the discretion given district judges to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute.Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235 (1964). Under Rule 54(d), this Court may, in all instances, assess the equity of awarding costs under the particular circumstances of the case. White White, Inc., 786 F.2d at 733 (citing Lichter Foundation, Inc. v. Welch, 269 F.2d 142, 146 (6th Cir. 1959)). Rule 54(d), with the discretion it affords, was intended to address situations in which "it would be inequitable under all of the circumstances in the case to put the burden of costs upon the losing party." Lichter, 269 F.2d at 146. In Rosser v. Pipefitters Union Local 392, 885 F. Supp. 1068, 1071-72 (S.D.Ohio 1995), the Court summarized the factors that should be considered in exercising its discretion:
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 amounts 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. (citing White White, 786 F.2d at 730-731).
Plaintiff asserts that the Court should deny costs to the Defendant because (1) Defendant's victory was insignificant and the judgment also was a victory to her; (2) the case was close and difficult; (3) she acted reasonably and in good faith in bringing this action and conducted the case with propriety; (4) other courts have denied costs in similar cases; (5) the public did not benefit frm the case; and (6) an award of costs would have a chilling effect on other cases. The Court addresses each of these assertions below.
(1) Victory for Plaintiff
Plaintiff contends that the parties litigated novel issues under the Americans with Disabilities Act, 28 U.S.C. § 12101 et seq. ("ADA"), the most contentious of which were never addressed or resolved on appeal. Plaintiff also contends that she achieved a victory in this case because she forced Honda to hire an industrial hygienist who prepared a report indicating that there were no detectable levels of airborne bronchial irritants in Plaintiff's production area to inflame her asthma which ultimately led to her ability to return to work.
The Court does not characterize the issues before it as particularly novel. It required the Court to assess whether Plaintiff was a qualified individual with a disability under the ADA and whether Defendant violated the ADA by failing to accommodate her disability. This Court and the United States Court of Appeals for the Sixth Circuit concluded that Plaintiff was unqualified for the office positions that she sought and that Honda fulfilled its obligation to offer Plaintiff a reasonable accommodation at the production job. The Sixth Circuit, in fact, characterized this case as remarkably similar to a previous case, Cassidy v. Detroit Edison Co., 138 F.3d 629 (6th Cir. 1998), and concluded that this case was a straightforward application of the ruling there. That Honda hired an outside industrial hygienist to confirm the historical air-quality data already on record, does not, in and of itself, demonstrate a victory for Plaintiff, at least not one so significant as to render Honda's judgment insignificant. The Court concludes that this factor does not weigh in favor of denying costs.
(2) Close and Difficult Case
"The closeness of a case is judged not by whether one party clearly prevails over another, but 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.3d at 732. In contrast to the complex antitrust dispute at issue White White, however, this case presented comparatively straightforward issues. Certainly this case was hard-fought by competent, competitive counsel, but this case did not involve protracted litigation or a trial. Although the case involved factual questions that called for resolution, and a relatively large number of depositions for an employment case, ultimately this Court and the Sixth Circuit found for Honda on alternative grounds. Plaintiff has not presented sufficient grounds to overcome the presumption in favor of an award to costs under Rule 54(d).
(3) Plaintiff Acted Reasonably, In Good Faith and Conducted Case with Propriety
The Court will not conclude, based on the record before it, that Plaintiff acted in bad faith in bringing this lawsuit or that she, and her attorney, conducted the case with anything less than complete propriety. While these factors are relevant to the inquiry, they are insufficient bases on which to deny costs. The presence of these factors, in the absence of others, "do[es] not warrant an exercise of discretion under Rule 54(d)." White White, 786 F.3d at 730.
(4) Similar Cases
Plaintiff maintains that other courts have denied costs in similar cases, and in particular, relies on Rosser v. Pipefitters, 885 F. Supp. 1068 and U.S. ex rel Pickens v. GLR Contractors, Inc., 196 F.R.D. (S.D. Ohio 2000). These cases, however, are distinguishable and contained ample evidence from which the Court could support its decision that the losing party had overcome the presumption in favor of awarding costs. In Rosser, for instance, the Court found the case close and difficult after previously denying summary judgment and because it required a 5½ week trial and a 79-page order. The trial had 45 witnesses and the transcript alone exceeded 3000 pages.
Similarly, in Pickens, the Court denied the defendants' request for over $34,000 in costs, finding that many of the trial expenses in this qui tam action were unnecessary. The Court also found that the defendant had engaged in ambush tactics that could have seriously compromised the plaintiff's presentation of evidence such that defendants should not be monetarily rewarded. Further, the Court found a significant benefit to the public in that, because of "the Relator's actions, hundreds of thousands of dollars were returned to the United States Treasury and a polluter of the Ohio River was convicted. In addition, the likelihood of this sort of blatant disregard for the public's waterways happening again was lessened because of the civil and criminal prosecutions that occurred as a result of Relator's actions." 196 F.R.D. at 77.
Because these cases, and others in which the courts have denied costs to the prevailing party are so dissimilar to the instant matter, the Court concludes that this factor, too, does not assist the Plaintiff in her burden of overcoming the presumption.
(5) Public Benefit
Plaintiff has not identified any benefit that the public received from this litigation and Defendant argues that none was afforded. Plaintiff points out that the Sixth Circuit's case was unpublished and has no precedential value, much less public import. The Court concludes that this litigation had limited implication outside the relationship between these two parties, and the public largely was unaffected, except in the broadest sense that the public benefits from open proceedings designed to vindicate legal rights. Nonetheless, the Court does not find that this factor weighs against imposition of costs, as requested by Plaintiff. Had this case resulted in securing a personal liberty, statutory right or constitutional privilege, the Court would be inclined to find that the public derived a common good. As it stands, however, this case brought finality between the parties but did not, in any significant way, benefit the public such that the presumption in favor of imposing fees has been overcome.
(6) Chilling Effect
Plaintiff claims that an award of costs would have a chilling effect on other employment litigation. She argues that employment cases are risky, particularly for individuals who lack sufficient funds to assert their legal rights. Importantly, Plaintiff does not represent or argue that she, herself, lacks sufficient funds to pay the bill of costs. Indeed, had Plaintiff provided any showing regarding inability to pay, the Court's analysis here would be different. While Plaintiff's assumption that employment cases are risky for indigent plaintiffs certainly is true, if followed to its logical conclusion, all losing parties would be permitted to evade Rule 54(d) at the expense of denying prevailing parties their statutory right to recover costs. Moreover, the Sixth Circuit has expressly rejected the argument that awarding costs may deter others who have suffered discrimination from bringing suits and held that awarding taxable costs to a defendant in a civil rights action would not have a chilling effect on potential litigants. Singleton, 241 F.3d at 538-39.
In sum, the Court concludes that Plaintiff may properly and equitably bear a small portion of the costs of her unsuccessful litigation. Consistent with the foregoing, Plaintiff's Motion to Review and Deny Bill of Costs (Doc. #44) is DENIED. Defendant is granted its Bill of Costs in the amount of $6350.08.
IT IS SO ORDERED.