United States District Court, D. Rhode Island
MARY M. LISI, Senior District Judge.
On November 6, 2015, this Court entered a Memorandum of Decision in this long-standing litigation. All but one of Plaintiff's claims having been dismissed by stipulation and/or decided in the Defendants' favor after a one-day trial without a jury, the Court found for the Defendants on the last remaining claim. (Dkt. No. 92). Judgment was entered on the same day (Dkt. No. 93).
On November 9, 2015, the Defendants submitted a bill of costs (Dkt. No. 94), together with a supporting memorandum (Dkt. No. 94-1), an affidavit from Defendants' counsel, and an invoice for transcription services (Dkt. No. 94-2). Pursuant to Rule 54 of the Federal Rules of Civil Procedure, Defendants seek the costs of preparing transcripts for Plaintiff's deposition and trial testimony in the total amount of $1, 433.55.
On November 16, 2015, the Plaintiff filed a motion in opposition to the imposition of costs (Dkt. No. 95) on the grounds that (1) Plaintiff's in forma pauperis ("IFP") motion had been granted by a Rhode Island state court prior to removal of the case to this Court; and (2) Plaintiff's complaint was not frivolous. In support of the latter contention, the Plaintiff pointed to the Defendants' decision to withdraw a No Trespass Order-which was "the basis of Plaintiff's Injunctive Count"-before the Court made a determination on the constitutional validity of that order. Pltf.'s Mem. at Page 2 of 2 (Dkt. No. 95-1).
In response, the Defendants asserted that the No Trespass Notice was revised after the parties had engaged in lengthy settlement discussions in an attempt to arrive at a mutually agreeable notice. Defendants maintained that, while the Plaintiff was initially accorded IFP status, his complaint alleged constitutional violations that were neither factually nor legally supported. Defs.' Reply at Page 3 of 3 (Dkt. No. 96).
On December 3, 2015, while a determination on the bill of costs was still pending, Plaintiff filed a notice of appeal (Dkt. No. 97), together with an application to proceed without prepayments of fees (Dkt. No. 98). In his application, Plaintiff asserts that he has not worked in the past six years. On December 7, 2015, Magistrate Judge Almond issued a Memorandum and Order, in which he advised the Plaintiff that, unless he provided the requisite affidavit pursuant to Fed. R. App. P. 24(a) by December 31, 2015, his application would be denied and his appeal would be dismissed for nonpayment of the filing fee. Memorandum and Order (Dkt. No. 100). On December 31, 2015, the Plaintiff filed the requisite affidavit (Dkt. No. 101). On January 5, 2016, the Defendants filed a response in opposition to Plaintiff's IFP motion, (Dkt. No. 102), on the grounds that the Plaintiff's appeal failed to raise any appealable issue. On January 7, 2016, Magistrate Judge Almond issued a Memorandum and Order, in which he accorded the Plaintiff IFP status in filing his appeal (Dkt. No. 104).
I. Standard of Review
The award of costs following litigation is governed by Federal Rule 54. Pursuant to Rule 54(d)(1), "[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party." Fed.R.Civ.P. 54(d)(1)(emphasis added). Rule 54(d)(1) further provides that "[t]he clerk may tax costs on 14 days' notice. On motion served within the next 7 days, the court may review the clerk's action." Fed.R.Civ.P. 54(d)(1)(emphases added). Local Rule LR Cv 54 sets forth, in some detail, (1) the procedure by which a party may request costs; (2) how such costs are to be taxed by the clerk; (3) the process of having the clerk's action reviewed; and (4) the requirement for parties to confer and resolve the matter.
Rule 54(d)(1) provides that "unless... a court order provides otherwise, " costs should be awarded to the "prevailing party." Fed.R.Civ.P. 54(d)(1). The language of Federal Rule 54 indicates that the allowance of costs is discretionary. 10 Wright, et al., Federal Practice and Procedure § 2665 at 203 (2014) ("The phrase unless a court order directs otherwise' makes the allowance of costs discretionary..."); In re San Juan Dupont Plaza Hotel Fire Litigation, 142 F.R.D. 41, 46 (D.P.R. 1992)(noting that Rule 54(d) "provides that the award of costs to the prevailing party is not obligatory but within the discretionary power of the Court"). In deciding whether to award costs to the prevailing party, "the federal courts are free to pursue a case-by-case approach and to make their decisions on the basis of the circumstances and equities of each case." 10 Wright, et al., Federal Practice and Procedure § 2668 at 235; In re San Juan Dupont Plaza Hotel Fire Litigation, 142 F.R.D. at 46 ("Decisions shall be based upon the facts and equities of each case.")
The Court notes that, particularly if the losing party is capable of paying the awarded costs, "the presumption in favor of awarding costs to the prevailing party is difficult to overcome.'" BASF AG v. Great American Assur. Co., 595 F.Supp.2d 899, 901 (N.D. Ill., Jan. 29, 2009)(quoting Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 945 (7th Cir.1997)). Accordingly, the burden is on the non-prevailing party "to show circumstances that are sufficient to overcome the presumption in favor of the prevailing party." 10 Wright, et al., Federal Practice and Procedure § 2668 at 236.
Usually, the party in whose favor judgment is entered is considered the "prevailing party." Tunison v. Continental Airlines Corp., Inc. 162 F.3d 1187, 1189 (D.C.C. 1998). Where a defendant successfully defends against a plaintiff's substantial claims and judgment is entered accordingly, the defendant is generally considered the prevailing party. Russian River Watershed Protection Comm. v. City of Santa Rosa, 142 F.3d 1136, 1144 (9th Cir.1998).
Regarding the award of costs against in forma pauperis litigants, courts that have addressed the issue have held that "a plaintiff's indigency does not require the court to automatically waive costs to an unsuccessful litigant." Cox v. Preferred Technical Group, Inc. 110 F.Supp.2d 786, 792 (N.D. Ind. Aug. 15, 2000)(citing McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir.1994) (noting that a district court may properly assess costs against even an in forma pauperis litigant); Weaver v. Toombs, 948 F.2d 1004, 1008 (6th Cir.1991)).
Although a court may take into consideration whether the non-prevailing party pursued the litigation in good faith, that fact alone, by itself, is not a sufficient reason to deny costs to the prevailing party. See Pacheco v. Mineta, 448 F.3d 783, 794 (5th Cir. 2006)(noting that the "Fourth, Sixth, Seventh, Ninth and Tenth [Circuit]-has ruled that good faith, by itself, cannot defeat the operation of Rule 54 (d)(1)"). Pacheco also lists a "wide range of reasons... to justify withholding costs from the prevailing party", including (1) the losing party's limited financial resources; (2) misconduct by the prevailing party; (3) close and difficult legal issues presented; (4) substantial benefit conferred to the public; and (5) the ...