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Dews v. Troy University

July 9, 2007


The opinion of the court was delivered by: Myron H. Thompson United States District Judge


This case is before the court on defendant Troy University's motion to award costs in the amount of $1,693.75. The motion will be granted.


Plaintiff Blake Dews, a "photo studio" student at Troy, brought this lawsuit against the university and several of its administrative officials and faculty, charging that they violated federal and state laws when they censored and refused to display his art project, which he describes in his complaint as "a collage ... of 16 black-and-white photographs of male and female models--some of which are depicted in the nude, yet none of which are engaged in sexual activity or posed with a member of the opposite sex while nude." Compl. ¶ 28 (doc. no. 1). The parties engaged in discovery, and the defendants filed a motion for summary judgment. On the day Dews's response to the summary-judgment motion was due, he filed a motion to dismiss, with prejudice, his entire complaint. The record does not reflect that the parties reached a settlement agreement. This court granted Dews's motion and dismissed the case. Troy timely filed a bill of costs and a motion to award costs, which Dews opposes.


The taxation of costs that normally accompanies final judgment is governed by Rule 54(d)(1) of the Federal Rules of Civil Procedure: "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."

A. Prevailing Party

The first question is whether Troy is the prevailing party in this litigation. When a plaintiff voluntarily dismisses an action with prejudice, the defendant is considered the prevailing party. Mathews v. Crosby, 480 F.3d 1265, 1276 (11th Cir. 2007); see also Mother & Father v. Cassidy, 338 F.3d 704, 710 (7th Cir. 2003); Schwarz v. Folloder, 767 F.2d 125, 130 (5th Cir. 1985).

Dews cites Easiley v. Norris, 107 F.Supp.2d 1332 (N.D. Okla. 2000) (Kern, C.J., adopting report & recommendation of Joyner, M.J.), for the proposition that a defendant is not a prevailing party when the plaintiff has voluntarily dismissed the complaint. Easiley, however, addresses the definition of 'prevailing party' in the context of attorney's fees, not costs. Although Dews argues that Easiley's definition of 'prevailing party' should be applied to costs as well as fees, in fact the term is not synonymous in both contexts. See 10 James Wm. Moore, Moore's Federal Practice § 54.101[3], at 54-160 to -161 (3d ed. 2007) (discussing the different meaning of 'prevailing party' in the context of costs versus fees, particularly for voluntary dismissal of civil-rights cases). In any event, Easiley is not binding on this court, whereas Mathews v. Crosby is. Therefore, Troy is the prevailing party in this case.

B. Court's Discretion to Deny or Reduce Costs

The next question is whether the court should exercise its discretion not to tax costs against Dews, or to reduce the costs taxable against him, even though Troy is the prevailing party. Rule 54(d) "establishes a presumption that costs are to be awarded to a prevailing party, but vests the district court with discretion to decide otherwise." Chapman v. AI Transp., 229 F.3d 1012, 1038 (11th Cir. 2000) (en banc). "The presumption that the prevailing party is entitled to costs must be overcome by some showing that an award would be inequitable under the circumstances. The losing party bears the burden of making this showing." 10 Moore, supra, § 54.101[1][b] at 54-152. Courts may employ a case-by-case approach in considering objections to costs awards under Rule 54(d)(1). 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2668, at 231 (3d ed. 1998).

In this case, Dews argues that he is indigent and unable to pay costs. Dews has filed an affidavit in which he states that he graduated from Troy in 2005 with approximately $20,000 in student-loan debt, that he is employed full-time at a frame factory earning $9 per hour, that he has expenses of approximately $1,395 per month, and that he must rely on his parents for his car payments and car insurance. According to Dews, because of his inability to pay, the court should reduce costs by 90 %, from $1,693.75 to $169.38.

In this circuit, "a non-prevailing party's financial status is a factor that a district court may, but need not, consider in its award of costs pursuant to Rule 54(d)." Chapman, 229 F.3d at 1039. Before that factor can be considered, there must be "clear proof of the non-prevailing party's dire financial circumstances." Id. Additionally, "Even in those rare circumstances where the non-prevailing party's financial circumstances are considered in determining the amount of costs to be awarded, a court may not decline to award any costs at all." Id.

In Blevins v. Heilig-Meyers Corp., 184 F.R.D. 663 (M.D. Ala. 1999) (Thompson, J.), this court exercised its discretion to reduce ...

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