Opinion
Cause No. NA 98-157-C H/S
August 16, 2001
ENTRY ON PLAINTIFF BUNDY'S MOTION FOR NEW TRIAL OR JUDGMENT AS A MATTER OF LAW AND DEFENDANT'S BILL OF COSTS
Plaintiffs Melinda Bundy and Opha Sandy Knapp sued Child Craft Industries, Inc. for violating Title VII of the Civil Rights Act of 1964 and for torts under state law. The court granted summary judgment to Child Craft on plaintiffs' claims of sexual harassment under Title VII and Mrs. Bundy's claim for disability and/or pregnancy discrimination. The court denied summary judgment on both plaintiffs' claims of retaliation and their claims under state law. Those claims were tried to a jury in March 2001. The court granted judgment as a matter of law for defendant Child Craft on the state law claims. The jury rendered a verdict for defendant on both plaintiffs' claims of retaliation under Title VII, and judgment was entered accordingly in favor of defendant on all claims.
Plaintiff Bundy has filed a timely motion seeking either a new trial or judgment as matter of law on her claim of retaliation. Defendant Child Craft has filed a bill of costs to which both plaintiffs have objected.
I. Plaintiff Bundy's Post-trial Motion
A party who has lost a jury verdict may seek relief under Rules 50 or 59 of the Federal Rules of Civil Procedure.
A court may grant judgment as a matter of law under Rule 50 only if the evidence at trial, even when viewed in the light reasonably most favorable to the non-moving party, and giving that party the benefit of all reasonable inferences from the evidence and any conflicts in the evidence, would not allow a reasonable jury to find in favor of the non-moving party. See Kossman v. Northeast Illinois Regional Commuter R.R. Corp., 211 F.3d 1031, 1036 (7th Cir. 2000). The court may set aside the jury's verdict and enter judgment as a matter of law only when the evidence is such that, without resolving conflicts in the testimony or otherwise considering the weight of the evidence, a reasonable jury could reach only one conclusion. Lane v. Hardee's Food Systems, Inc., 184 F.3d 705, 706-07 (7th Cir. 1999); Klunk v. County of St. Joseph, 170 F.3d 772, 775 (7th Cir. 1999); Emmel v. Coca-Cola Bottling Co., 95 F.3d 627, 629-30 (7th Cir. 1996).
At the outset, plaintiff Bundy's request for relief under Rule 50 runs into a procedural obstacle. A court may grant relief under Rule 50 after a jury trial only if the party seeking relief filed a timely motion during trial and then renewed it after trial. See Fed.R.Civ.P. 50(a)(2), (b); Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1364 (7th Cir. 1996) ("This Court gives effect to the plain language of Rule 50(b) by requiring that a motion for judgment as a matter of law be made at the close of all evidence in order to be preserved for post-trial consideration."). Mrs. Bundy did not move for judgment as a matter of law on the retaliation claim before it was submitted to the jury, so she could not win judgment as a matter of law at this point.
Apart from this procedural obstacle, however, judgment as a matter of law would not be justified on the merits in any event. Mrs. Bundy's retaliation claim puts at issue the subjective intent of her employer. At trial she bore the burden of proof by a preponderance of the evidence. She needed to persuade the jury that Child Craft's actions were not merely mistaken or ill-advised, but that Child Craft acted for the purpose of punishing her for complaining about Gene Dixon's actions. Although the jury might reasonably have reached that conclusion on the evidence at trial, that was not the only reasonable way to view the evidence. In fact, in light of the burden of proof and the issue of subjective intent, a plaintiff would be entitled to judgment as a matter of law on a retaliation claim in only the rarest cases.
Mrs. Bundy's motion for a new trial under Rule 59 is subject to a different standard: whether the jury's verdict was against the weight of the evidence or for other reasons the trial was unfair. See Westchester Fire Ins. Co. v. General Star Indemnity Co., 183 F.3d 578, 582 (7th Cir. 1999). Mrs. Bundy's motion does not argue the trial was unfair. She argues simply that she should have won on the merits of her claim.
The burden on a party seeking a new trial based on the weight of the evidence is substantial. A district court may grant a new trial because the verdict was against the weight of the evidence "only when the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks [the court's] conscience." Latino v. Kaizer, 58 F.3d 310, 315 (7th Cir. 1995) (finding abuse of discretion in district court's decision to grant a new trial based on weight of evidence; trial judge improperly usurped the jury's role in deciding the most reasonable inferences to be drawn from the evidence); accord, Cefalu v. Village of Elk Grove, 211 F.3d 416, 424 (7th Cir. 2000) (affirming denial of new trial: "Only when a verdict is contrary to the manifest weight of the evidence should a motion for a new trial challenging the jury's assessment of the facts carry the day.").
When Mrs. Bundy and Mrs. Knapp complained about Gene Dixon in late March 1998, Mrs. Bundy was pregnant. The evidence showed that the situation caused by Dixon's conduct led her doctor to excuse her from work. The doctor later authorized a return to work under vaguely defined restrictions. Much of the evidence at trial dealt with Child Craft's responses to the doctor's stated restrictions. A reasonable jury could have found quite easily that Child Craft's responses amounted to a retaliatory strategy of obstinate delay and obstruction designed to prevent Mrs. Bundy from returning to work while Dixon remained on the job, effectively punishing the victim rather than the harasser.
That is not the only reasonable view of the evidence, however. An employer whose pregnant employee is subject to a doctor's restrictions on her work can confront difficult choices in terms of its legal obligations, let alone human and ethical concerns. Those concerns may be especially weighty when the employee works in a industrial facility that has some inherent hazards. Without taking leave of its collective senses, the jury could have found, and apparently did find, that Child Craft was being cautious, or at least that Bundy had not proven by a preponderance of the evidence that Child Craft was retaliating against her.
In deciding a motion for a new trial, the question is not whether the judge merely believes the jury "got it wrong." The question is whether the verdict is contrary to such a manifest weight of evidence that the court finds the case to be one of those rare cases in which judicial intervention is needed to prevent a miscarriage of justice. The court is not persuaded that this is one of those rare cases. The jury's task was to weigh conflicting evidence about Child Craft's actions and the reasons for those actions. The jury did so in this case, and its verdict was not contrary to the manifest weight of the evidence. Even if the court viewed the evidence differently, Mrs. Bundy is not entitled to a new trial.
II. Defendant's Bill of Costs
Defendant Child Craft has submitted a bill of costs seeking a total of $7,921.12 in costs under Fed.R.Civ.P. 54(d) and 28 U.S.C. § 1920. Plaintiffs Knapp and Bundy argue that no costs should be awarded because of their inability to pay. They also contend that even if some costs are awarded, defendant is not entitled to the full amount it seeks.
Under Rule 54(d)(1) of the Federal Rules of Civil Procedure, a prevailing party is entitled to an award of costs other than attorneys' 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). The losing parties' 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.
The presumption in favor of awarding costs may be overcome if the losing parties are 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 Mrs. Bundy and Mrs. Knapp both contend they are unable to pay the thousands of dollars sought by Child Craft. They have supported that contention with affidavits about their 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.
Before evaluating the evidence of inability to pay, the court must first determine the amount that would properly be payable if a bill of costs is allowed in this case. Child Craft's bill of costs is plainly excessive in several respects.
Videotapes of depositions: Child Craft's attorneys arranged to videotape the depositions of both plaintiffs and their husbands. The cost of the videotapes totaled $1,250 beyond the costs of the deposition transcripts. Child Craft notes that Judge McKinney allowed the costs of both deposition transcripts and videotapes in Roberts v. Owens-Corning Fiberglass Corp., 101 F. Supp.2d 1076 (S.D.Ind. 1999). Judge McKinney was careful to note, however, that the costs of both transcripts and videotapes may be taxed as costs "provided that both were necessarily obtained for use in the case." Id. at 1086, citing Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1478 (10th Cir. 1997), and other cases. Judge McKinney also took care to explain that both of the videotaped depositions in Roberts were of witnesses who were not expected to be available to testify at trial. 101 F. Supp.2d at 1086-87.
In this case, the court cannot say that the videotapes of the four depositions were reasonably necessary for the case. All four deponents were expected to be available at trial. No doubt the videotapes, none of which were used at trial, might have been convenient for the defense, but they were not reasonably necessary here, even at the times they were taken. Removing the videotape charges reduces the amount of taxable costs by $1,250.00.
Deposition Transcript Charges: Plaintiffs also contend that the taxable costs of deposition transcripts are limited to the rates established by the Judicial Conference even if those rates are lower than the rates actually charged by court reporters in the case. The Seventh Circuit applied the Judicial Conference limits to a cost award in Cengr v. Fusibond Piping Systems, Inc., 135 F.3d 445, 455-56 (7th Cir. 1998). In addition, where copies of exhibits were provided by counsel during the depositions, an extra set of exhibits copied by the court reporter is a matter of convenience rather than necessity, and its cost is not taxable. Plaintiffs' counsel has done a painstaking re-calculation at the proper rates and without charges for exhibits. Child Craft has not disputed those calculations. They require a reduction of $1,042.15.
Copying Charges: Plaintiffs also contend that Child Craft seeks excessive costs by charging for copies of papers at 20 cents per page when the market rate for copying services is between seven and ten cents per page. The court agrees and reduces the allowable rate to ten cents per page. That reduction requires a total reduction of $708.75.
After making these reductions, a proper amount of taxable costs in this case would be $4,920.22. If any costs were awarded, the court would divide them between the two plaintiffs at $2,460.11 each.
With those matters resolved, the issue is whether plaintiffs are unable to pay those amounts, so that costs should not be awarded. The court finds that the plaintiffs acted in good faith in pursuing this litigation, and the case was far from frivolous. Most important, neither plaintiff can afford to pay this bill of costs.
Plaintiff Bundy: Plaintiff Bundy and her husband have provided a detailed statement of their finances, which Child Craft does not dispute. Both Mr. and Mrs. Bundy work hard at low-wage jobs to support themselves and their children. They are barely keeping their heads above water financially while covering current (modest) expenses and minimum monthly payments on the $36,000 they owe in other debts. Mrs. Bundy's ex-husband does not pay child support. If the court ordered Mrs. Bundy to pay Child Craft $2,460.11, that order would fall in line behind the Bundys' other debts. It could not be paid in the foreseeable future. The court finds that Mrs. Bundy is unable to pay a cost award in this case and therefore denies Child Craft's bill of costs as to Mrs. Bundy.
Plaintiff Knapp: Plaintiff Knapp has provided much less information about her finances, but the information is compelling. She is working at a nursing home and earns less than $200 per week. She also has unpaid debts to medical providers and others. She expresses the opinion that a cost award would force her into bankruptcy. Her affidavit would have been more persuasive with more detail, but Child Craft has not contested the bottom line. Based on the affidavit and all the evidence at trial concerning Mrs. Knapp, the court also finds that she is unable to pay an award of costs in this case. Child Craft's bill of costs is also denied as to Mrs. Knapp.
For the foregoing reasons, plaintiff Bundy's motion for a new trial or in the alternative for judgment as a matter of law is hereby denied, and defendant Child Craft's bill of costs is also denied.
So ordered.