The opinion of the court was delivered by: Judge Gregory L. Frost
Magistrate Judge Mark R. Abel
This matter is before the Court for consideration of Plaintiffs' Objection to Clerk's Memorandum on Costs.*fn1 (Doc. # 74.) Defendants have filed a memorandum in opposition (Doc. # 75) to Plaintiffs' filing, and Plaintiffs have filed a reply memorandum (Doc. # 78). For the reasons that follow, the Court finds Plaintiffs' objection not well taken.
The three consolidated cases involve a lawsuit brought by various City of Columbus firefighters who sought accommodations for taking a Fire Captain promotion examination. After failing to obtain the accommodations sought, Plaintiffs filed suit under the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, and Ohio's handicap discrimination law. After various developments, including two appeals, Defendants ultimately prevailed. Defendant the City of Columbus then filed a Bill of Costs with this Court in the amount of $4,801.17. (Doc. # 69.)
The parties briefed the issue of costs. (Docs. # 71, 82.) On September 12, 2006, the Clerk then issued a memorandum that disallowed some claimed costs and taxed the reduced costs in the amount of $3,418.17. (Doc. # 73.) Plaintiffs subsequently filed the pending objection to the bill of costs in which they moved the Court to deny costs or, alternatively, to reduce the costs awarded. (Doc. # 71.) The parties have completed briefing on the objection, and the matter is now ripe for disposition.
The parties dispute whether Federal Rule of Civil Procedure 54(d)(1) or the ADA governs an award of costs here. Rule 54 provides that "[e]xcept 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." Fed. R. Civ. P. 54(d)(1). In addressing an award of costs, the Sixth Circuit has explained:
Costs may properly be denied "where taxable expenditures by the prevailing party are 'unnecessary or unreasonably large,' " "where the prevailing party should be penalized for unnecessarily prolonging trial or for injecting unmeritorious issues," or where the case is " 'close and difficult.' " [White & White, Inc. v. American Hosp. Supply Co., 786 F.2d 728, 730 (6th Cir. 1986)]. "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." Id. at 732-33. An inappropriate factor to consider is "the ability of the prevailing party to pay his or her costs." Id. at 730. We have also held that "[t]he good faith of unsuccessful litigants is a relevant consideration in Rule 54(d) deliberations. Good faith without more, however, is an insufficient basis for denying costs to a prevailing party." Id. at 731.
Goostree v. State of Tenn., 796 F.2d 854, 864 (6th Cir. 1986).
The ADA in turn provides in relevant part that "[i]n any action . . . commenced pursuant to this chapter, the court . . . in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs." 42 U.S.C. § 12205. The Sixth Circuit
Via their objection to the Clerk's memorandum on costs,*fn2 Plaintiffs present three basic arguments to this Court: (1) that the Clerk erroneously awarded costs under the inapplicable Rule 54(d)(1), (2) that applicable ADA law bars the recovery of costs here, and (3) that even if Rule 54(d)(1) ...