The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
Presently before the Court are Defendant's Bill of Costs and Plaintiff's Motion to Quash Bill of Costs.
The lawsuit before the Court arose out of a vehicular accident between Mr. Joshua Carlton, an employee of Marten Transport, Ltd. who was operating a tractor and trailer owned by Marten Transport, Ltd., and Ms. Yolanda Wheeler. Yolanda Wheeler died as a result of the injuries she sustained in the accident of October 4, 2005. Plaintiff Ann Marie Wheeler, Administrator of the estate of Yolanda Wheeler, brought this action seeking damages related to her death.
On February 12, 2007, a jury found in favor of Defendants by answering "No" to the Interrogatory, "Do you find the Defendant, Joshua R. Carlton, was negligent and that his negligence was a proximate cause of Plaintiff's damages?". On February 19, 2007, Defendant submitted a Bill of Costs, which totals $22,448.16. On February 20, 2007, the Court entered a Judgment in favor of Defendants, and dismissed the Complaint with prejudice. On February 23, 2007, Plaintiff filed her Motion to Quash Bill of Costs.
II. Bill of Costs and Motion to Quash Bill of Costs
Plaintiff argues that the Court should find that an award of costs would work a substantial hardship upon Plaintiff and deny the bill of costs in its entirety. Plaintiff Ann Wheeler states that she is a part-time substitute teacher for the Blytheville Public Schools, and an examplar pay check indicates that as of November 30, 2006, Ann Wheeler had made only $2,038.35 for the entire year. Regarding the Estate, Plaintiff states that Ann Wheeler testified at her first deposition that the only asset that the decedent had was a house, that it was not paid off, and that the family had made a decision for now to keep the house as it is the decedent's son's only "real connection to his mother."
Defendant argues that Plaintiff's recitation of her earnings is misleading, as Plaintiff has produced no evidence or information concerning her assets. Furthermore, Defendant states that Plaintiff and her husband, Keeley Wheeler, own a home, and undoubtedly, have many other assets. Defendant also notes that Plaintiff brought this action for the benefit of herself and other beneficiaries, and discusses the fact that some of those other beneficiaries are employed. Additionally, Defendant states that the decedent's son, Joshua Devon Johnson, is the beneficiary of a $250,000 life insurance policy that has "been turned over to" Ann Wheeler and her husband. Defendant also notes that Plaintiff has provided no information regarding the equity in the home of the decedent.
Federal Rule of Civil Procedure 54, entitled "Costs Other than Attorneys' Fees," provides 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 attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs.
Fed. R. Civ. P. 54(d)(1). 28 U.S.C. § 1920 defines "costs" and sets forth the categories of trial expenses awardable to a prevailing party under Rule 54(d), including:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
28 U.S.C. § 1923(a). "While the above-enumerated costs are presumed to be taxable, the Court must exercise discretion in assessing costs, only allowing taxation of costs for materials 'necessarily obtained for use in the case,' 28 U.S.C. § 1920, and in an amount that is reasonable." Berryman v. Hofbauer, 161 F.R.D. 341, 344 (E.D. Mich.1995) (citing Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994); U.S. Industries, 854 F.2d at 1245; Griffith v. Mt. Carmel Medical Center, 157 F.R.D. 499, 502 (D. Kan. 1994); Voight, 141 F.R.D. at 101). "In seeking costs under Rule 54(d), the prevailing party has the burden of establishing that the expenses he seeks to have taxed as costs are authorized by applicable federal law, including proof of necessity and reasonableness under 28 U.S.C. § 1920. Id.
Federal Rule of Civil Procedure 54(d) has been interpreted as creating a presumption that costs are to be awarded to the prevailing party. See Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101 S.Ct. 1146, 67 L.Ed. 2d 287 (1981); Martin v. Daimler-Chrysler, 251 F.3d 691, 696 (8th Cir.2001) (citations omitted). "Despite this presumption, however, the district court has substantial discretion in awarding costs to a prevailing party." Greaser v. State, Dept. of Corrections, 145 F3d 979, 985 (8th Cir. 1998)(upholding district court's denial of costs to prevailing defendant in discrimination case). Although some circuits are of the view that costs should only be denied to a prevailing party if it is guilty of some misconduct or other action worthy of penalty, it appears that the Eighth Circuit takes a broader view, finding that Rule 54(d)'s grant of discretion alone permits a court to deny costs. Greaser, 145 F.3d at 985.
Also, the Court may consider Plaintiff's limited financial resources. Cross v. General Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983). The court in Wal-Mart Stores, Inc. v. Crist, 123 F.R.D. 590, 594-95 (W.D. Ark. 1988), stated:
In Bartel, Taxation of Costs and Awards of Expenses (1984), 101 F.R.D. 553, the author at p. 559, cites numerous cases from many jurisdictions for the conclusion that "an award of costs is within the 'sound discretion of the district court.' " The author of that article also sets forth, beginning at p. 561, a wide range of reasons that have been invoked by courts to justify withholding costs from the prevailing party. Among those reasons are "absence of clear victory" and "indigency and good faith." . . .
In Bartel, supra, at p. 561, it is said that: "the most common bases for denying costs to prevailing defendants have been the indigency of the losing plaintiff...." (citing cases). In cases such as Maldonado v. Parasole, 66 F.R.D. 388, 390 (E.D.N.Y.1975), courts have said that: "indigency is a proper ground for denying costs in cases where there is a wide disparity of economic resources between the parties." . . .
The Court of Appeals for the Eighth Circuit recognized the trial court's right and discretion to deny costs to a prevailing party in the case of Boyd v. Ozark Airlines, Inc., 568 F.2d 50, 55 (8th Cir.1977). The Court said:
While costs are normally awarded to the prevailing party, such an award is within the sound discretion of the trial court. Fed. R. Civ. Proc. 54(d); 6 Moore's Federal Practice § 54.70 (2d ed. 1976). Since the trial court did award Boyd $2,500 in attorneys' fees, we cannot say that it abused its discretion in failing to award her costs as well.
However, even assuming that the litigants here are indigent, "unsuccessful indigent litigants are not automatically shielded from the imposition of costs against them." McGill v. Faulkner, 18 F.3d 456, 458 (7th Cir. 1994). While this is a close question, the Court declines to deny costs in their entirety. Therefore, the Court must consider the specific objections by the Plaintiff to Defendant's Bill of Costs.
Plaintiff cites Pershern v. Fiatallis North America, Inc., 834 F.2d 136, 140 (8th Cir. 1987), for the proposition that the $350.00 removal fee incurred by Defendant is not a taxable cost. Defendant argues that, in Pershern, the Eighth Circuit found that "Section 1920 does not authorize the taxing of state court filing fees or removal bond premiums in removal actions," not the removal fee. Id.
"A filing fee is a 'fee of the clerk' which is typically allowed as part of costs under Section 1920." Card v. State Farm Fire and Cas. Co., 126 F.R.D. 658, 660 (N.D. Miss. 1989) Court fees are allowed as costs whether they are fees which are paid when the action was initially filed or when the action was removed. Id. (citing Raio v. American Airlines, Inc., 102 F.R.D. 608, 611 (E.D. Penn.1984); Department of Highways v. McWilliams Dredging Co., 10 F.R.D. 107, 108 (W.D. La.1950), aff'd, 187 F.2d 61 (5th Cir. 1951)). See also McGuigan v. CAE Link Corp., 155 ...