The opinion of the court was delivered by: Sandra S. Beckwith, Chief Judge United States District Court
This matter is before the Court on Plaintiff Barbara Loder Hildebrandt's motion for review of the Clerk of Court's January 12, 2006 Memorandum On Costs (Doc. 162). For the reasons set forth below, Defendants motion for Bill of Costs (Doc. 139) is GRANTED in the amount of $27, 751.63.
Plaintiff filed suit against Defendant Hyatt Corporation and some of its individual executives, Defendants Ty Helms, Jack Horne, and Brian Booth (collectively referred to herein as "Hyatt") alleging that Defendants used an economic recession and the terrorist attacks of September 11, 2001 as a pretext to divest itself of older employees. Plaintiff also alleged that during her employment with Hyatt Corporation, she was denied promotional opportunities because of her age and gender.
On February 15, 2002, Plaintiff filed a complaint of discrimination with the EEOC which alleged that Hyatt terminated her employment and denied her promotional opportunities because of her age and gender. See Case No. C-1-02-464, Complaint ¶ 24. Plaintiff received a right to sue letter from the EEOC on March 28, 2002. Id.
In the interim, on November 29, 2001, Plaintiff filed suit against Defendants in the Hamilton County, Ohio Court of Common Pleas. This complaint asserted claims of age and gender discrimination regarding her termination pursuant to the Ohio Civil Rights Act, Ohio Rev. Code §4112.01, et seq. The complaint also asserted that Hyatt discharged her in violation of Ohio public policy. On January 2, 2002, Defendants removed Plaintiff's complaint to this Court pursuant to 28 U.S.C. §§1441 and 1446. See Doc. 1. The basis for this Court's subject matter jurisdiction was diversity jurisdiction pursuant to 28 U.S.C. §1332 in that the parties are citizens of different states and the amount in controversy was in excess of $75,000.
On June 25, 2002, Plaintiff filed a new lawsuit against Hyatt Corporation and Jack Horne in federal court. This complaint was given case number C-1-02-464 and assigned to Judge Weber. The complaint in this case asserted claims against Hyatt for age and gender discrimination with respect to Plaintiff's termination and denial of promotions pursuant to the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., respectively. The complaint also asserted claims for age and gender discrimination against Defendant Horne pursuant to the Ohio Civil Rights Act. Plaintiff also filed a claim for violation of Ohio public policy because of age and gender discrimination against Defendant Horne. On motion of the Plaintiff, the Court consolidated the two cases.
On March 1, 2004, Defendants moved for summary judgment on each of Plaintiff's claims. See Doc. 63. In response, Plaintiff clarified her complaints and thus had the following claims: 1) an ADEA claim against Hyatt regarding the termination of her employment; 2) state law age discrimination claims against Hyatt, Helms, Horne, and Booth regarding the termination of her employment; 3)*fn1 state law age and gender discrimination claims against Hyatt, Helms, Horne and Booth regarding denial of promotions; and 4) breach of public policy claims against Hyatt, Helms, Horne, and Booth for age and gender discrimination. See Doc. 85.
This Court granted summary judgment in Defendants' favor on the following claims: 1) Defendants' motion for summary judgment as to Plaintiff's claims against Defendant Booth; 2) Defendants' motion for summary judgment on Plaintiff's state law breach of public policy claim; and 3) Defendants' motion for summary judgment on Plaintiff's failure to promote claims. Defendants' motion for summary judgment regarding Plaintiff's age discrimination claims against Defendants Hyatt Corporation and Helms and Horne in their individual capacities was denied (Doc. 85).
The remaining age discrimination claim was tried to a jury over a period of seven days. The jury returned a verdict in favor of Defendants which was subsequently affirmed on appeal. Hildebrandt v. Hyatt Corp., 154 Fed. Appx. 484 (6th Cir. 2005). On August 24, 2004, Defendants filed a Bill of Costs pursuant to Fed. R. Civ. P. 54(d) (Doc.139). On January 12, 2006, the Clerk taxed costs in this case in the amount of $83,765.18, the full amount submitted by Defendants. Plaintiff filed objections to Defendants' Bill of Costs (Doc. 165) within the time period set by this Court (Notation Order to Doc. 163).
Plaintiff has asked this Court to exercise the discretion granted under Fed. R. Civ. P 54(d)(1) and deny as inequitable Defendants' request for Bill of Costs under the circumstances of her case. In the alternative, Plaintiff has asked this Court to deny Defendants' request for expert fees, consulting fees and costs associated with expert preparation of demonstrative exhibits totaling $59,588.55.
Rule 54(d)(1) states in pertinent part, "Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorney's fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed. R. Civ. P. 54(d)(1). In Goosetree v. State of Tennessee, 796 F.2d 854 (6th Cir. 1986), the Sixth Circuit interpreted this language as establishing the taxation of costs against the losing party as the normal course of action. Therefore, the burden is placed on the unsuccessful party to demonstrate to the Court that the presumption in favor of awarding costs does not apply and why the Court should exercise its discretion not to award costs. Furthermore, since the language of Rule 54(d)(1) is mandatory, the Court is more limited in its exercise of discretion than it would be if the Rule were discretionary. See id. at 863. The Sixth Circuit has ruled that costs may properly be denied where: 1) taxable expenditures by the prevailing party are unnecessary or unreasonably large; 2) the prevailing party should be penalized for unnecessarily prolonging trial or for injecting unmeritorious issues; or 3) the case is "close and difficult." Id. at 864. The good faith of an unsuccessful litigant is a relevant consideration in Rule 54(d) deliberations, but good faith alone is an insufficient basis for denying costs to a prevailing party. Id.
Plaintiff has asked this Court to denyas inequitable Defendants' request for Bill of Costs in toto on the grounds that: 1) the case was close and difficult; 2) Defendants have submitted requests for reimbursement of costs that are both unnecessary and unreasonably large; and 3) she pursued her claim in good faith (Doc. 165). For the reasons stated below, Plaintiff's objections are not well taken and DENIED.
A. PLAINTIFF'S OBJECTIONS TO COSTS IN TOTO
The Sixth Circuit has approved a denial of costs in several close and difficult cases involving numerous parties, exhibits, transcript pages, and lengthy opinions. In Goosetree, the Sixth Circuit held that, "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." See Goosetree, 769 F.2d at 864. The Court applied this standard in White & White, Inc. v. American Hospital and Supply Corp., 786 F.2d 728 (6th Cir. 1986). In White & White, the prevailing party, American Hospital Supply Corp,. filed a motion for Bill of Costs in the amount of $126, 820.58. The Sixth Circuit affirmed the decision of the district court which ordered each party to bear its own trial costs. Id. White & White involved a complex antitrust action that "consumed 80 trial days, required 43 witnesses, produced 800 exhibits, generated almost 15,000 pages of transcript and begat a 95 page opinion." Id. at 732.
In another case, U.S. ex rel. Pickens v. GLR Constructors, Inc., 196 F.R.D. 69 (S.D. Ohio 2000), the court declined to tax costs against the losing party. Pickens involved an action brought under the False Claims Act. The case was tried to a jury over a five week period. The court described Pickens as "a close, competitive, hard fought, and difficult case" that 'involved complex legal and factual issues requiring protracted litigation over a five-year period." Id. at 76. The jury in Pickens was required to sift through "voluminous factual evidence," "numerous trial binders with exhibits," and "thousands of pages of trial transcripts of numerous witnesses." Id. Under such circumstances, each party was ordered to bear its own litigation costs. Id at 78.
In McDonald v. Petree & Hudspeth, 409 F.3d 724 (6th Cir. 2005), the Sixth Circuit affirmed an award costs to the prevailing defendants. In McDonald, plaintiffs filed negligence claims against two defendants following a car accident. The district court granted summary judgment in favor of one defendant, thereby dismissing her from the suit, and a jury's verdict was entered in favor of the other defendant. The plaintiffs appealed the award of costs to the prevailing defendants on the grounds that: 1) the case was close and difficult, and 2) the plaintiffs acted in good faith and with propriety in pursuing the claim. The Sixth Circuit rejected plaintiffs' argument that the issues surrounding the grant of summary judgment as well as the question of whether certain evidence could be presented to the jury were sufficient to render the case "close and difficult." Id. at 732. The plaintiffs' good faith and propriety, standing alone, were insufficient to overcome the presumption of Fed. R. Civ. P. 54(d). Id.
In this case, Plaintiff contends that, "the length of the jury deliberation and the questions it addressed to the Court in the course of those deliberations, in itself, demonstrates both the closeness of the case and the good faith of the Plaintiff." (Doc. 165) This Court respectfully disagrees that this case should be characterized as "close and difficult."
The length of time the jury deliberated in this case is hardly indicative of a "close and difficult case." The jury deliberated from approximately 1:01pm on Friday, August 13, 2004 until the verdict was announced at approximately 2:14 pm on August 16, 2004. The law of this Circuit is clear that the district court's discretion pursuant to Rule 54(d)(1) is "more limited than it would be if the rule were nondirective." Id. (quoting Coyne-Delany, 717 F.2d 385, 392 (7th Cir. 1983)). In Smith v. Rosenthal, Collins Group, LLC, 2006 U.S. Dist. LEXIS 29585 (S.D. Ohio May 4, 2006), the court rejected the unsuccessful litigant's argument that costs should be denied to the prevailing party on the grounds that the case was "close and difficult." The court found that, "The trial lasted only four days and involved nine witnesses and 76 exhibits." Id. at *6. Similarly, in this case, the jury trial lasted approximately 5 days, the jury deliberated for approximately one day (although deliberation occurred over a two day period), 16 witnesses were called, and 44 exhibits were produced. A comparison of the facts of this case with the facts of the Rosenthal case indicate that this case, like Rosenthal, was not close and difficult. In addition, the Court's observations of the trial proceedings indicate that the Defense presented credible witnesses to support their reasons for terminating Plaintiff's employment and that the case was not particularly close and difficult.
Nor is this Court persuaded by Plaintiff's argument that the two questions submitted to the Court during jury deliberations indicate a "close and difficult"case (Doc. 85). One question submitted by the jury merely requested a calculator and a flip chart; a request granted by the Court without objection from either party. (Doc. 160). This Court does not find that such a request indicates an increase in the "refinement of perception required to recognize, sift through, and organize relevant evidence." See White & White,786 F.2d at 732.
The second question submitted to the Court was a written request to review a book of exhibits provided by the Defense and a chart showing the number of persons who remained in an National Sales Force. (Doc.160). Noting an objection by Defendants, the Court responded as follows: "Demonstrative exhibits that are part of an attorney's opening statement and/or closing argument are not evidence and have not been admitted to evidence; therefore, they cannot be provided to you." Id. Because the Court held that the requested items were not "evidence," the second question submitted to the Court is irrelevant with regard to the "refinement of perception required to recognize, sift through, and organize relevant evidence." Id.
In McDonald, the Sixth Circuit affirmed an award of costs despite plaintiffs' argument that the question whether certain evidence could be presented to the jury was sufficient evidence of a close and difficult case*fn2 . In this case, Plaintiff contends that the jury's request to see certain items was sufficient evidence of a "close and difficult case." Following the decision of the Sixth Circuit in McDonald, this Court disagrees with Plaintiff. For all of the reasons stated above, Plaintiff's objection to the taxation of costs against her on the grounds that this was a "close and difficult case" is not well taken and DENIED.
Plaintiff has also asked this Court to exercise its discretion pursuant to Rule 54(d)(1) on the grounds that Defendants submitted requests for reimbursement of costs that are both unnecessary and unreasonably large. (Doc. 165). In White & White, the Sixth Circuit held that, "Although the court may deny unnecessary costs, unnecessary costs are not a reason for denying all costs." See White & White 786 F.2d at 732. Furthermore, the Sixth Circuit has stressed that a district court's ultimate award of costs must be supported by factual findings. Pickens v. GLR Constructors, Inc., 196 F.R.D. at 73; see also Phelan v. Bell 8 F.3d 369, 375 (6th Cir. 1993); P. Mastrippolito & Sons, Inc. V. Joseph, 692 F.2d 1384, 1388 (3d Cir. 1982) (stating that a district court may not deny costs to a prevailing party without an explanation). However, in Pickens, the court expressed that, "The United States Supreme Court does not read 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." See Pickens, 196 F.R.D. 69 at 73.
In light of the strong presumption pursuant to Fed. R. Civ. P. 54(d) that costs are to be awarded as a matter of course, this Court is not persuaded by Plaintiff's argument that costs should be denied in toto on the grounds that Defendants seek reimbursement of costs that are both unnecessary and unreasonably large. (Doc. 165). Rather, this Court will address any unreasonable or unnecessary costs in Section B of this document, "Plaintiff's Objections To Individual Costs." This method is proper where the Court has limited discretion and is required to support any denial of costs with factual findings. See Pickens, 196 F.R.D. at 73 Finally, Plaintiff contends that costs should not be awarded to Defendants because she pursued her claim in good faith. (Doc. 165). The good faith of an unsuccessful litigant is a relevant consideration in Rule 54(d) deliberations, but good faith alone is an insufficient basis for denying costs to a prevailing party. See Goosetree, 769 F.2d at 864. This Court cannot weigh the good faith of the Plaintiff in its decision to ...