Opinion
Case No. 4:03-cv-20.
February 28, 2005
MEMORANDUM OPINION
On November 30, 2004, the court issued a forty-seven page opinion and accompanying judgment in favor of defendants. (docket #'s 249, 250). Defendants filed a timely application for costs. On February 9, 2005, the Clerk of the Court entered a taxed bill of costs against plaintiff in the amount of $1,953.60. (docket # 266). The matter is now before the court upon plaintiff's Rule 54(d)(1) motion to disallow the taxed costs. (docket # 267). Upon review, the court finds that plaintiff's motion is meritless. The motion will be denied, and judgment entered in defendants' favor against plaintiff in the amount of $1,953.60.
Generally, costs other than attorneys fees are allowed as a matter of course to the prevailing party unless the court otherwise directs. FED. R. CIV. P. 54(d). This language creates a presumption in favor of awarding costs. See Soberay Mach. Equip. Co. v. MRF Ltd., Inc., 181 F.3d 759, 770 (6th Cir. 1999). The unsuccessful party has the burden of showing circumstances to overcome the presumption. See White White, Inc. v. American Hosp. Supply Corp., 786 F.2d 728, 732 (6th Cir. 1986); see also Pion v. Liberty Dairy Co., 922 F. Supp. 48, 50 (W.D. Mich. 1996). The Sixth Circuit reviews a district court's decision on an application for costs under an abuse-of-discretion standard. See Trepel v. Roadway Express, Inc., 266 F.3d 418, 425 (6th Cir. 2001); see Arrambide v. Wal-Mart Stores, Inc., No. 00-6272, 2002 WL 531137, at * 3 (6th Cir. Apr. 4, 2002); Virostek v. Liberty Township Police Dep't, Nos. 99-3809, 99-3893, 2001 WL 814933, at * 12 (6th Cir. July 11, 2001) ("The district court's discretion is more limited than it would be if the rule were nondirective, and it is incumbent on the unsuccessful party to show circumstances sufficient to overcome the presumption favoring an award of costs to the prevailing party."). A district court abuses its discretion when it relies upon clearly erroneous findings of fact, uses an incorrect legal standard, or applies the law incorrectly. Bovee v. Coopers Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir. 2001); Arrambide, 2002 WL 531137, at * 3. Plaintiff has not established any basis for departing from the general rule favoring an award of costs to the prevailing parties.
Plaintiff's motion contains four arguments, none of which require lengthy discussion. Plaintiff objects to the taxed costs on the following grounds: (1) "[p]laintiff should not be made to suffer the imposition of costs of defense counsel's failure to plead federal immunity in a preanswer motion to dismiss;" (2) the court should have sua sponte dismissed plaintiff's claims at the outset of the case on the basis of absolute immunity; (3) defense counsel unnecessarily increased the cost of litigation by (a) taking plaintiff's deposition; (b) ordering a hearing transcript; and (c) incurring copying costs; and (4) defendants should receive nothing because plaintiff believes that he is indigent as a result of defendants' actions.
With regard to plaintiff's first two arguments, it was plaintiff's own litigiousness that caused the defendants to incur substantial costs. If plaintiff believed that his claims were barred by immunity, he obviously could have refrained from filing this lawsuit. Plaintiff never sought to voluntarily dismiss any of his claims. Plaintiff consistently pursued an aggressive litigation strategy over the two-year life span of this lawsuit ( see e.g., docket #'s 84, 93, 94, 104, 106, 111, 125, 185, 189, 190, 213, 214, 227, 234), which resulted in defendants incurring the very costs to which plaintiff now vigorously objects. Plaintiff must live with the consequences of his actions.
Defendants' largest single cost item is the cost of plaintiff's deposition. Plaintiff contends that it was "unnecessary" for the defendants to take his deposition because he now believes that the defendants could have utilized interrogatories or requests for admissions in lieu of taking his deposition. For obvious reasons, it is not up to plaintiff, with the benefit of hindsight, to determine how defendants should have conducted discovery. "Necessity" is determined as of the date plaintiff's deposition was taken: June 9, 2004. See Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989); see also Arrambide, 2002 WL 531137, at * 4 (6th Cir. Apr. 4, 2002). Given the nature of plaintiff's claims against defendants ( see Op. at 1-2, 4-20, docket # 249), it was absolutely necessary for defendants to obtain plaintiff's sworn deposition testimony committing plaintiff to a specific factual sequence of events. Plaintiff's deposition easily qualifies as "necessarily obtained for use in the case." Defendants are entitled to recover the deposition costs under 28 U.S.C. § 1920(2).
Plaintiff objects to awarding defendants costs incurred in obtaining a copy of the transcript of a November 5, 2003 hearing before a magistrate judge on defendants' motion to set aside a default. Plaintiff claims that the $48 in costs was "unnecessary" because the transcript "was available on PACER at a rate of $.07 per page." (Plf. Brief at 4, docket # 268). Plaintiff is incorrect. This transcript has never been available on PACER. The Judicial Conference has not yet authorized public access to transcripts over the PACER system. Furthermore, defendants incurred this cost as a direct result of plaintiff's decision to pursue a nonmeritorious appeal of the magistrate judge's decision setting aside the default.
Next, plaintiff argues that defendants' per page copying cost of $.20 per page is excessive. Plaintiff asks the court to take "judicial notice" of a market rate for copying of less than $.10 per page. Plaintiff fails to present any evidence supporting the purported market rate. Defendants' motion for costs is supported by a verification that the defendants incurred a cost of $.20 per page. This per-page cost is not excessive. See, e.g., Wilhelm v. CSX Transp., No. 3:00cv7099, 2005 WL 361482, at *1 (N.D. Ohio, Feb. 16, 2005) (25¢ per page as a reasonable photocopy cost); Wilcox v. Straub, No. 95-cv-725, 1997 WL 33323861, at *1 (W.D. Mich. June 24, 1997) (same); L.R. UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 39(a) (reproduction costs recoverable at the lesser of actual costs or "a cost of twenty-five (25) cents per page"). Plaintiff claims that the court's ECF system has "virtually eliminated" copying costs. While the ECF system has generally reduced the need for paper copies, it has not, by any stretch of the imagination, eliminated copying costs. Defendants withdrew the only cost item to which plaintiff made a specific objection, and it was not included in the Clerk of the Court's taxed bill of costs.
A Rule 54(d)(1) motion is not plaintiff's opportunity to reargue the merits of his claims. (Plf. Brief at 5-6, docket # 268). Plaintiff is pursuing an appeal of this court's decision, see Lawrence v. Van Aken, et al., No. 05-1082 (6th Cir. 2005), and plaintiff's arguments on the merits are matters for the Court of Appeals.
Finally, plaintiff argues that defendants should be denied their costs because plaintiff is indigent. It was plaintiff's burden to submit evidence supporting his claim of indigence. Weaver, 948 F.2d at 1014. Because plaintiff did not submit any evidence, he failed to carry his burden. The court's decision to allow plaintiff to initiate this lawsuit in forma pauperis does nothing to alter this result. Costs are generally "taxed in favor of prevailing parties and against losing parties, whether or not they have been privileged to proceed previously in the district court without prepayment of costs." Weaver v. Toombs, 948 F.2d at 1011; Wilcox v. Straub, 1997 WL 33323861, at * 1; accord In re Paoli R.R. Yard PCB Lit., 221 F.3d 449, 464 (3d Cir. 2000).
The law in the Sixth Circuit is not entirely clear on whether "indigence" is an appropriate consideration in determining whether to award costs. Longstanding, published Sixth Circuit opinions hold that it is error for a district court to consider a losing party's ability to pay as a basis for denying a prevailing party an award of taxed costs. See, e.g., Lewis v. Pennington, 400 F.2d 806, 819 (6th Cir. 1968); Lichter Foundation v. Welch, 269 F.2d 142, 146 (6th Cir. 1959). These early cases have never been overruled. Nonetheless, in subsequent decisions, the Court of Appeals has held that the district court has "discretion" to consider inability to pay, and in other cases has stated that the district court must consider capacity to pay assessed costs. See Jones v. Continental Corp., 789 F.2d 1225 (6th Cir. 1986) ("discretion"); Weaver v. Toombs, 948 F.2d 1004, 1013 (6th Cir. 1991) (requiring examination of capacity to pay the costs); see also Wilcox v. Straub, 1997 WL 33323861, at * 2 (tracing the evolution of the case law in this area). Recent Sixth Circuit decisions have emphasized that one panel of the Court of Appeals cannot overrule a published decision of another panel, and that the prior panel's decision remains controlling authority unless an inconsistent decision of the Supreme Court requires modification of the decision or the Sixth Circuit sitting en banc overrules the prior decision. See Dingle v. Bioport Corp., 388 F.3d 209, 215 (6th Cir. 2004); Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir. 2001). Regardless of whether this court cannot, may, or must consider plaitniff's ability to pay the assessed costs, here, in the absence of evidence supporting plaintiff's claim of indigence, there is no basis upon which to deny the defendants their costs.
Conclusion
For the reasons set forth herein, plaintiff's motion to disallow taxed costs will be denied. Judgment will be entered in defendants' favor against plaintiff in the amount of $1,953.60.