United States District Court, D. Minnesota
Padraigin Browne, Browne Law LLC, Lake Elmo, MN, for
Plaintiff Scott Smith.
J. Linnerooth and Edward P. Sheu, Best & Flanagan, LLP,
Minneapolis, MN, for Defendants Bradley Pizza, Inc. and
Pamela M. Dahl.
OPINION AND ORDER
C. Tostrud United States District Judge
case brought under the Americans with Disabilities Act and
the Minnesota Human Rights Act, Plaintiff Scott Smith seeks
review of the Clerk of Court's entry of an amended cost
judgment for Defendants in the amount of $1, 118.21. Am. Cost
Judgment [ECF No. 244]; Mot. for Rev. [ECF No. 245].
Smith's motion will be denied because Smith has not shown
that the judgment is erroneous or inequitable under the
facts and procedural history relevant to Smith's motion
may be described briefly. In an opinion and order dated June
12, 2019, summary judgment was entered in Defendants'
favor for lack of subject-matter jurisdiction because the
record did not show that Smith suffered an injury sufficient
to give him Article III standing. Smith v. Bradley Pizza,
Inc., No. 17-cv-02032 (ECT/KMM), 2019 WL 2448575 (D.
Minn. June 12, 2019). After entry of judgment [ECF No. 229],
Defendants submitted a bill of costs to the Clerk of Court
seeking to recover $6, 980.02; this amount included
transcript fees, docket fees, expert fees, and courier
expenses. Bill of Costs [ECF No. 236]; Sheu Decl. [ECF No.
237]. Smith objected, challenging Defendants' entitlement
to costs and, alternatively, the amount of the costs. ECF No.
240. On September 4, 2019, the Clerk entered a cost judgment
of $2, 359.20 for Defendants. ECF No. 241. The Clerk allowed
Defendants' claimed expenses for transcript and docket
fees but denied their claimed expenses for expert fees and
courier services. Id. On September 13, the Parties
filed a stipulation to amend the amount of the cost judgment
based on corrections made to Defendants' claimed
transcript costs. ECF No. 243. As part of the stipulation,
Smith preserved his right to seek review of the cost
judgment. Id. at 3. On September 18, pursuant to the
Parties' stipulation, the Clerk entered an amended cost
judgment in the amount of $1, 118.21. Am. Cost J. Smith seeks
review of the amended cost judgment. ECF No. 245.
a federal statute, [the Federal Rules of Civil Procedure], 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); see also 28
U.S.C. § 1920 (listing appropriate costs for taxation).
The Americans with Disabilities Act has a cost and
fee-shifting provision, and it does not conflict with Rule
In any action or administrative proceeding commenced pursuant
to this chapter, the court or agency, in its discretion, may
allow the prevailing party, other than the United States, a
reasonable attorney's fee, including litigation expenses,
and costs, and the United States shall be liable for the
foregoing the same as a private individual.
42 U.S.C. § 12205. Within a prescribed time after entry
of a cost judgment, a party may file a motion for review of
the Clerk's action. Fed.R.Civ.P. 54(d)(1); LR 54.3(c)(3).
Judicial review of the taxation of costs “is a de novo
determination addressed to the sound discretion of the
court.” E. Coast Test Prep, LLC v. Allnurses.com,
Inc., No. 15-cv-3705 (JRT/ECW), 2019 WL 1487812, at *6
(D. Minn. Apr. 4, 2019) (quotation and citation omitted). The
party seeking review bears the burden of showing that a cost
judgment is “inequitable under the
circumstances.” Concord Boat Corp. v. Brunswick
Corp, 309 F.3d 494, 498 (8th Cir. 2002).
argues that Defendants are not prevailing parties because his
claims were dismissed without prejudice for lack of
subject-matter jurisdiction based on Smith's failure to
show that he possessed Article III standing. But the law
favors the conclusion that a defendant who achieves a
dismissal on this basis is a prevailing party. Neither the
Federal Rules nor the ADA define “prevailing
party.” Nonetheless, “Congress has included the
term ‘prevailing party' in various fee-shifting
statutes, and it has been the [Supreme] Court's approach
to interpret the term in a consistent manner.” CRST
Van Expedited, Inc. v. E.E.O.C., 136 S.Ct. 1642, 1646
(2016). “[T]he touchstone of the prevailing party
inquiry must be the material alteration of the legal
relationship of the parties[.]” Texas State
Teachers Assn. v. Garland Indep. Sch. Dist., 489 U.S.
782, 792-93 (1989). This alteration must be marked by
“judicial imprimatur.” Buckhannon
Bd. & Care Home, Inc. v. West Va. Dept. of Health &
Human Res., 532 US. 598, 605 (2001).
“[E]nforceable judgments on the merits and
court-ordered consent decrees create the ‘material
alteration of the legal relationship of the parties'
necessary to permit an award[.]” Id. at 604
(citing Texas State Teachers Assn., 489 U.S. at
792-93). However, “a defendant need not obtain a
favorable judgment on the merits in order to be a
‘prevailing party.'” CRST, 136 S.Ct.
at 1651 (stating a defendant “may prevail even if the
court's final judgment rejects the plaintiff's claim
for a nonmerits reason”). A defendant has
“fulfilled its primary objective whenever the
plaintiff's challenge is rebuffed, irrespective of the
precise reason for the court's decision.”
Id. This is so because “[p]laintiffs and
defendants come to court with different objectives. A
plaintiff seeks a material alteration in the legal
relationship between the parties. A defendant seeks to
prevent this alteration to the extent it is in the
plaintiff's favor.” Id. In concluding that
a defendant may prevail “even if the court's final
judgment rejects the plaintiff's claim for a nonmerits
reason, ” the Supreme Court did not distinguish between
jurisdictional and non-jurisdictional victories, and the
Court explicitly declined to consider whether a defendant
must obtain a preclusive judgment in order to prevail.
Id. at 1651, 1653. A dismissal for lack of
subject-matter jurisdiction based on the absence of an
injury-in-fact is, therefore, sufficient to confer prevailing
party status on Defendants because it is a
judicially-sanctioned action that “rebuffs
[Smith's] attempt to effect a ‘material alteration
in the legal relationship between the parties.'”
Raniere v. Microsoft Corp., 887 F.3d 1298, 1303-07
(Fed. Cir. 2018) (quoting CRST, 136 S.Ct. at 1646,
1651); see also Small Justice LLC v. Xcentric Ventures
LLC, 873 F.3d 313, 327-28 (1st Cir. 2017) (affirming
conclusion that defendant prevailed in case resolved on
standing grounds); Amphastar Pharms., Inc. v. Aventis
Pharma SA, 856 F.3d 696, 709-10 (9th Cir. 2017)
(applying CRST to conclude defendant prevailed and
“permanently changed the legal relationship of the
parties” in action dismissed for lack of subject-matter
jurisdiction (quotation omitted)).
argues that, if Defendants are prevailing parties, the
amended cost judgment should be vacated nonetheless based on
his financial condition. Mem. in Supp. at 5. A non-prevailing
party's financial status may be considered when
determining whether to tax costs. See Poe v. John Deere
Co., 695 F.2d 1103, 1108 (8th Cir. 1982). However, a
“nonprevailing party must be facing dire financial
circumstances” to avoid paying costs. Kaplan v.
Mayo Clinic, No. 07-cv-3630 (JRT/JJK), 2011 WL 3837095,
at *2 (D. Minn. Aug. 29, 2011). “Furthermore,
‘[i]t is not just a matter of being unable to presently
pay the costs; it must also be shown that the litigant is not
likely to be able to pay the costs in the future.'”
Id. (quoting Denson v. Ne. Ill. Reg. Commuter
R.R. Corp., No. 00 C 2984, 2003 WL 21506946, at *1 (N.D.
Ill. June 27, 2003)). The only record evidence Smith
identifies to show his inability to pay costs is his
deposition testimony that he does not currently have a job
and has not had one since 2001. Mem. in Supp. at 5. That
statement says nothing about Smith's overall financial
condition or other sources of income. The testimony Smith
identifies does not justify concluding that Smith cannot pay
a cost judgment.
on the foregoing, and all of the files, records, and
proceedings herein, IT IS ORDERED THAT:
Plaintiff Scott Smith's Motion for Review of Clerk's
Action [ECF No. 245] is DENIED.
Clerk's Amended Cost Judgment [ECF No. 244] in the amount
of $1, 118.21 for Defendants Bradley Pizza, ...