UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

BHALTAVATSALA R. APURI, M.D., ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Cause No. 1:16-CV-363-HAB 

 ) 

PARKVIEW HEALTH SYSTEM, INC. ) 

PARKVIEW HOSPITAL, INC. ) 

and ROY ROBERTSON, M.D., ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

 This matter comes before the Court on Defendant’s Petition for Defense Costs and 

Attorney Fees (ECF No. 98) and supporting Memorandum (ECF No. 99), filed on April 10, 2019. 

In their Motion, Defendants ask this Court for deposition transcript costs and attorney’s fees by 

virtue of their claimed status as prevailing parties in this case. Plaintiff filed his Response in 

Opposition (ECF No. 100) on April 24, 2019. After being granted several extensions, Defendants 

filed their Reply (ECF No. 111) on October 7, 2019. Defendant’s Petition is now ripe for review. 

A. Procedural Background 

 Plaintiff filed his Complaint and Jury Demand (ECF No. 1) on October 14, 2016, and a 

First Amended Complaint (ECF No. 25) on May 18, 2017. Generally, Plaintiff alleged that his 

privileges at Defendants’ hospital were not renewed due to racial discrimination. The Complaints 

alleged four causes of action: (1) a violation of 42 U.S.C. § 1981; (2) Non-Renewal of Privileges; 

(3) Breach of Contract; and (4) Intentional Interference with Business Relationship. The final three 

causes of action were brought under Indiana state law. 
2 

 Although discovery closed on December 1, 2017, several discovery motions were filed and 

heard after the deadline. Plaintiff filed a Motion to Compel (ECF No. 39) on December 1, 2017, 

and a Second Motion to Compel (ECF No. 42) on December 11, 2017, seeking responses to 

Plaintiff’s Request for Production of Documents and Third Request for Production of Documents, 

respectively. A hearing was held on Plaintiff’s motions on February 14, 2018, by Magistrate Susan 

Collins. The docket indicates that, following argument on the motions, the parties came to an 

“agreement to limit discovery requests and to terms of document production,” thus mooting the 

motions. 

 On May 24, 2018, Plaintiff filed his Third Motion to Compel (ECF No. 57). In that motion, 

Plaintiff advised the Court that, despite previously agreeing to provide certain mortality medical 

charts subject to one or both of Plaintiff’s earlier motions to compel, Defendants were now 

demanding $176,000.00 to produce 175 charts. Plaintiff sought an order from the Court requiring 

Defendants to produce the agreed-upon materials. Defendants responded on June 7, 2018. (ECF 

No. 60). Rather than address the cost issue, Defendants argued that the requested charts were 

privileged and irrelevant, and that the requests for production of documents were unduly 

burdensome. Defendants also filed a Motion to Strike Plaintiff’s Third Motion to Compel (ECF 

No. 61) on June 7, 2018, arguing that Plaintiff’s motion was untimely. Magistrate Collins again 

held a hearing on the parties’ discovery dispute on July 27, 2018. The docket indicates that 

Plaintiff’s Third Motion to Compel was granted and Defendants’ Motion to Strike was denied “for 

the reasons stated on the record.” 

 During the pendency of the Third Motion to Compel, Defendants filed their Motion for 

Summary Judgment and Designation of Evidence (ECF No. 70) and Memorandum of Law in 

Support (ECF No. 71) on July 23, 2018. Plaintiff filed his Response Brief in Opposition to 
3 

Defendants’ Motion for Summary Judgment (ECF No. 83) and Designation of Evidence (ECF No. 

84) on December 11, 2018. The parties also filed and briefed evidentiary issues as part of the 

summary judgment proceedings. (ECF Nos. 87–95). 

 This Court issued its Order and Opinion on Defendant’s Motion for Summary Judgment 

(ECF No. 96) on March 27, 2019. This Court initially found that Plaintiff’s claim was subject to 

the burden-shifting analysis created by the United States Supreme Court in McDonnell Douglas 

Corp. v. Green, 411 U.S. 792 (1973). (Id. at 5). As such, Plaintiff was required to establish: 

(1) he is a member of a protected class; (2) he performed his job to his employer’s 

expectations; (3) he suffered an adverse employment action; and (4) one or more 

similarly situated individuals outside his protected class received better treatment. 

(Id. at 6). Plaintiff failed on both the second and fourth elements. 

The Plaintiff has not established the second element of his prima facie case. The 

Plaintiff argues that, because he had some of the lowest mortality rates of 

physicians at Parkview, he must therefore have been qualified to hold medical 

privileges. However, the Defendants decided not to renew the Plaintiff’s hospital 

privileges at least in part because of issues unrelated to the Plaintiff’s medical 

outcomes, including conducting rounds late at night and communication issues with 

nursing staff and Emergency Room personnel. The Plaintiff has not disputed the 

fact of his continued problems in these areas. The Plaintiff also does not contest the 

legitimacy of the standards to which the Defendant held him. 

The Plaintiff’s argument as to the fourth element suffers from a similar problem. 

The Plaintiff presents evidence that he was a superior cardiologist, based on record 

outcomes from procedures performed by Caucasian cardiologists, whom the 

Plaintiff maintains did not lose their medical privileges as he did. However, the 

Plaintiff is again failing to respond to the Defendant’s articulated reasons for the 

termination of his medical privileges: the Plaintiff had documented problems with 

timely rounding and availability during call. Thus, the doctors the Plaintiff 

identifies are not valid comparators, because they did not have the same problems 

in performance. Because he has not presented evidence regarding instances of 

comparable misconduct, the Plaintiff cannot claim that he engaged in similar 

conduct, but nonetheless received disparate treatment for no apparent legitimate 

reason. 

(Id. at 7–8). 
4 

 This Court further concluded that, even had Plaintiff satisfied his burden under McDonnell 

Douglas, his claim would still fail. Plaintiff failed to designate any evidence demonstrating that 

the adverse employment action against him was due to his race. Notably, Plaintiff himself offered 

a race-neutral reason for his termination which, in and of itself, defeated his claim under the “butfor standard required for § 1981 claims.” (Id. at 10). 

 This Court did not reach the merits of Plaintiff’s state law claims. Rather, “considering 

judicial economy, convenience, fairness, and comity,” the Court dismissed those claims without 

prejudice to enable Plaintiff to refile those claims in an Indiana state court. (Id. at 10–12). Plaintiff 

re-filed his state law claims in the Allen County Superior Court on March 28, 2019. 

B. Legal Analysis 

1. Costs under Fed. R. Civ. P. 54(d) 

 Defendants first ask that this Court award them $3,810.98 in costs, representing 

Defendants’ payments to secure the deposition transcripts in this matter. Defendants assert that 

they are entitled to these costs under Fed. R. Civ. P. 54(d) since they were the “prevailing party.” 

“Unless 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). “There is a presumption that the prevailing party will recover costs, and the losing 

party bears the burden of an affirmative showing that taxed costs are not appropriate.” Beamon v. 

Marshall & Ilsley Tr. Co., 411 F.3d 854, 864 (7th Cir. 2005). This presumption “is difficult to 

overcome” and therefore, “the district court’s discretion is narrowly confined—the court must 

award costs unless it states good reasons for denying them.” Weeks v. Samsung Heavy Indus. Co., 

126 F.3d 926, 945 (7th Cir. 1997). Generally, only the losing party’s inability to pay or misconduct 
5 

by the prevailing party worthy of a penalty will suffice to justify denying costs. Bonds v. Fizer, 69 

F. Supp. 3d 799, 803 (N.D. Ill. 2014). 

 For the purposes of Rule 54, a party is deemed “prevailing” if it prevails as to a substantial 

part of the litigation. Testa v. Village of Mundelein, Ill., 89 F.3d 443, 447 (7th Cir. 1996). In a case 

with mixed results, the district court has the discretion to determine whether a party meets that 

standard. Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075 (7th Cir. 1999); Testa, 89 F.3d at 

447; Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 641 (7th Cir. 

1991). 

 The question of whether Defendants are a “prevailing party” for the purposes of Rule 54(d) 

does not appear to be in dispute. Defendants obtained judgment in their favor on Plaintiff’s sole 

federal claim and the remaining state law claims were dismissed. The net effect of Defendants’ 

summary judgment victory is that there is no federal lawsuit remaining. The Court concludes that 

this constitutes success as to a substantial part of the litigation before this Court, and Plaintiff does 

not seriously argue to the contrary. See Congregation of the Passion, Holy Cross Province v. 

Touche, Ross & Co., 854 F.2d 219, 220 (7th Cir. 1988) (“no question” party obtaining summary 

judgment on federal law claim and dismissal of pendent state law claims was prevailing party). 

 Because Defendants qualify as the prevailing party in this matter, this Court presumes that 

they are entitled to properly taxable costs. The costs a district court may tax are set forth in 28 

U.S.C. § 1920. Subsection (2) of § 1920 permits this Court to tax “[f]ees for printed or 

electronically recorded transcripts necessarily obtained for use in the case.” Defendants’ request 

for costs representing their payments for deposition transcripts are taxable, and the Court must 

start from a presumption that they are entitled to those costs. 
6 

 Plaintiff attempts to overcome this presumption not by arguing one of the exceptions 

identified in Bonds, supra, but instead by arguing that his state law claims continue in state court. 

According to Plaintiff, “[i]t could be fundamentally unfair to award Defendants costs for 

depositions that relate to all of Dr. Apuri’s claims based on the premise that Defendants prevailed 

on one of these claims.” (ECF No. 100 at 5). Defendants respond that this is not a basis to deny 

fees, and counter that most of the depositions dealt with Plaintiff’s federal law claim. (ECF No. 

111 at 3). 

 The Court concludes that Plaintiff’s argument is more persuasive. As Plaintiff notes, 

Defendants’ claim for costs related to all deposition transcripts would be more compelling if they 

had prevailed on the merits on all Plaintiff’s claims. However, all of Plaintiff’s state law claims 

survived summary judgment, and continue to pend in an Indiana state court. The Court presumes 

that Defendants continue to use those transcripts in their defense of the state law claims. While the 

parties dispute the percentage of the depositions devoted to the individual claims, there is little 

doubt that much of the deposition testimony is broadly applicable to all Plaintiff’s claims. The 

Court concludes that Defendants are entitled to a portion, but not all, of the claimed fees. See 

Charter Med. Corp. v. Cardin, 127 F.R.D. 111, 114 (D. Md. 1989) (prevailing party not entitled 

to costs for depositions used in related litigation). 

 Defendants’ documentation of its costs does little to inform the Court’s analysis of the 

appropriate amount of costs. There is no indication or explanation as to which depositions were 

necessary to the federal claims vis-à-vis the state law claims, how the depositions were necessary 

for the successful resolution of the case, or what percentage of the claimed costs are related to their 

success on the federal claim. What the Court can do is make the observation that these transcripts 

are being used in two different cases, suggesting that an even split in the cost of those transcripts 
7 

is appropriate. Therefore, the Court concludes that Defendants are entitled to costs in the amount 

of $1,905.49. 

2. Attorney Fees under 42 U.S.C. § 1988 

 Separate from their claim for costs, Defendants seek attorney’s fees in the amount of 

$91,610.00, which represents their attorney’s fees from the date of the close of discovery to the 

entry of judgment in their favor. Defendants argue that, as of the close of discovery, “the evidence 

showed that Dr. Apuri could not establish a prima facie case to support his claim of race 

discrimination (yet he continued litigating).” (ECF No. 99 at 6). 

Title 42, U.S.C. § 1988(b) provides, in pertinent part, that “[i]n any action or proceeding 

to enforce a provision of . . . [42 U.S.C. § 1981] . . . , the court, in its discretion, may allow the 

prevailing party1

, other than the United States, a reasonable attorney’s fee as part of the costs.” 

The Supreme Court has held that a prevailing defendant may recover attorney’s fees under § 1988 

if the plaintiff’s action is “frivolous, unreasonable, or groundless, or . . . the plaintiff continued to 

litigate after it clearly became so.” Hughes v. Rowe, 449 U.S. 5, 15 (1980) (quoting Christiansburg 

Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)); see also Leffler v. Meer, 936 F.2d 981, 986 

(7th Cir. 1991). Defendants are not required to show either subjective or objective bad faith on the 

part of the plaintiff in order to recover § 1988 attorney’s fees. Hamer v. Cty. of Lake, 819 F.2d 

1362, 1366 (7th Cir. 1987) (citation omitted). Instead, the defendant must demonstrate that the 

plaintiff’s action is “meritless in the sense that it is groundless or without foundation.” Hughes, 

449 U.S. at 14. “[W]hen a civil rights suit is lacking in any legal or factual basis . . . , an award of 

fees to the defendant is clearly appropriate to deter frivolous filings and to ensure that the ability 

1

 Plaintiff does not challenge Defendants’ assertion that they are “prevailing parties” under 42 U.S.C. § 1988, instead 

arguing that his claim was not frivolous. (ECF No. 100 at 6–9). While the Court believes that this is a closer question 

than Defendants’ status under Fed. R. Civ. P. 54(d), see Baggs v. City of South Pasadena, 958 F. Supp. 586, 588 (M.D. 

Fla. 1997), it will not deny fees on a basis not argued by Plaintiff. 
8 

of the courts to remedy civil rights violations is not restricted by dockets crowded with baseless 

litigation.” Coates v. Bechtel, 811 F.2d 1045, 1050 (7th Cir. 1987) (citation omitted). 

Although Defendants seek all attorney’s fees from the close of discovery forward, 

Defendants appear particularly aggrieved by having to address Plaintiff’s various requests for 

information that would form the basis for Plaintiff’s three motions to compel. Defendants 

repeatedly note Plaintiff’s pursuit of “irrelevant” information, including the medical records and 

charts for patients of other cardiologists. The problem with Defendants’ protestations is that they 

have already lost the debate over the relevance of Plaintiff’s discovery. Plaintiff’s first and second 

motions to compel were resolved by agreement following hearing, with Defendants apparently 

agreeing to produce at least some of the claimed documents, and the third was granted by the 

Court. The Court fails to see how Plaintiff’s court-approved discovery supports Defendants’ claims 

for fees. See Miller v. Dugan, 764 F.3d 826, 832 (8th Cir. 2014) (reducing fee award where 

discovery motions were resolved in favor of non-prevailing party). 

 The discovery issue aside, it is true that Plaintiff’s federal claim was resolved against him 

via summary judgment. Although a ruling on a motion for summary judgment is not conclusive 

proof of the frivolous nature of a litigant’s case, it is a relevant consideration. Thomas v. First Fed. 

Sav. Bank of Ind., 659 F. Supp. 421, 424 n.3 (N.D. Ind. 1987). However, 

it is important that a district court resist the understandable temptation to engage in 

post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, 

his action must have been unreasonable or without foundation. This kind of 

hindsight logic could discourage all but the most airtight claims, for seldom can a 

prospective plaintiff be sure of ultimate success. No matter how honest one’s belief 

that he has been the victim of discrimination, no matter how meritorious one’s 

claim may appear at the outset, the course of litigation is rarely predictable. 

Christiansburg, 434 U.S. at 421–22. 
9 

 Summary judgment is the moment in a lawsuit “when a party must show what evidence it 

has that would convince a trier of fact to accept its version of events.” Johnson v. Cambridge 

Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). As such, the Court concludes that Plaintiff’s 

summary judgment filings represent his best evidence, and therefore the best place to go in 

determining the merits of Plaintiff’s case. That evidence shows: 

 Plaintiff, a cardiologist of Indian descent, had held privileges at all local hospitals, 

including Parkview, from the early 2000s through 2014; 

 In 2010 or 2011, Plaintiff was involved in a verbal altercation with Defendant Robertson 

at Parkview where Plaintiff was told, “this is the beginning of your end in this town;” 

 Plaintiff reported the verbal altercation to Parkview, but no action was taken; 

 In 2009, Defendant Robertson referred to a patient as “that black guy;” 

 Following the altercation with Defendant Robertson, Plaintiff became the subject of peer 

review activity at Parkview for the first time in over a decade; 

 Defendant Robertson participated in the peer review process by submitting information to 

Parkview regarding Plaintiff’s “medical practice, clinical/technical skills, professional 

judgment and quality of care issues;” 

 Plaintiff’s privileges at Parkview’s All County hospitals were non-renewed as of October 

31, 2014, and that decision was upheld through Parkview’s appeal processes; 

 Plaintiff continued to enjoy practice privileges at Parkview’s LaGrange Hospital, and 

those privileges were renewed on October 31, 2016; 

 At the time Plaintiff’s privileges were non-renewed, several Caucasian cardiologists had 

worse patient outcomes than Plaintiff, and Plaintiff had lower mortality rates than almost 

every other cardiologist that enjoyed privileges at Parkview; and 
10 

 None of the Caucasian cardiologists were subject to peer review resulting in the 

termination of their privileges. 

(ECF No. 83 at 3–8). 

 The Court has already concluded that the foregoing evidence failed to establish a prima 

facie case of discrimination, and that even if it had Plaintiff could not demonstrate that Defendants’ 

stated reason of the non-renewal of privileges was pretext. (ECF No. 96 at 7–10). Nothing in this 

Opinion and Order changes that conclusion. However, the Court does not believe that these facts 

are so paltry as to render Plaintiff’s case frivolous, unreasonable, or groundless. While this Court 

found that Plaintiff’s deficiencies in conducting rounds and communicating with staff permitted 

Defendants to conclude that he was unqualified to hold privileges, it was not unreasonable for 

Plaintiff to believe that his low mortality rates would lead to a different conclusion. See Wohl v. 

Spectrum Mfg., Inc., 94 F.3d 353, 358 (7th Cir. 1996) (plaintiff can establish, for purposes of prima 

facie case, that he satisfied employer’s legitimate expectations through his own description of his 

work performance). Similarly, while this Court found that other cardiologists were not proper 

comparators due to differences in prior performance issues, it was not unreasonable for Plaintiff 

to believe that other cardiologists practicing at the same hospital could be sufficiently similar to 

him so as to count as comparators. See Coleman v. Donahoe, 667 F.3d 835, 851–52 (7th Cir. 2012) 

(“Demanding nearly identical comparators can transform this evidentiary ‘boost’ into an 

insurmountable hurdle.”). Finally, although this Court found that Plaintiff’s evidence did not 

contradict Defendants’ stated reasons for the non-renewal or demonstrate racial bias, the Court 

again finds that Plaintiff could have reasonably believed that he had adduced sufficient 

circumstantial evidence of discrimination. See Rudin v. Lincoln Land Comm. Coll., 420 F.3d 712, 

720–21 (7th Cir. 2005) (noting that circumstantial evidence of discrimination can consist of 
11 

“suspicious timing, ambiguous statements oral or written, behavior towards or comments directed 

toward other employees in the protected group, and other bits and pieces from which an inference 

of discriminatory intent might be drawn.”) (quoting Troupe v. May Dep’t Stores, 20 F.3d 734, 736 

(7th Cir. 1994). 

 The Court also finds that the litigation activities in this case undermine Defendants’ 

argument of frivolity. Take, for instance, the Defendants’ summary judgment filings. The 

memorandum in support of the motion is twenty-five pages long and took nearly forty attorney 

hours to draft. (ECF No. 71 at 2-9; ECF No. 111-1). Defendants designated 1,091 pages of 

evidence in support of the Motion for Summary Judgment (ECF No. 72). Defendants’ Reply in 

Support of Motion for Summary Judgment was another sixteen pages long and took nearly thirty 

attorney hours to prepare. (ECF Nos. 89, 111-1). Defendants’ summary judgment filings were 

significant legal undertakings. Surely, if Plaintiff’s case was “groundless or without foundation,” 

this kind of effort would not be necessary. 

 The Court also notes2

 that these same parties have indicated to the Allen Superior Court 

that they “may request that the Court conduct a trial on an issue or issues agreed upon by the 

parties” in the state court case. Apuri v. Parkview Health Sys., Inc., Allen County, Indiana Superior 

Court Cause No. 02D01-1903-PL-112, Order or Judgment of the Court dated January 9, 2020. If 

“the exact same racial animus allegations” (ECF No. 111 at 8) require a trial in state court, it is 

hard to understand how they can be frivolous here. 

 In summary, the Court finds that, while Plaintiff could not survive summary judgment, his 

case was not frivolous, unreasonable, or groundless. See, e.g., Cooney v. Casady, 735 F.3d 514, 

2

 Orders from the state court are public records and appropriate subjects of judicial notice. In the Matter of Lisse, 905 

F.3d 495, 496 (7th Cir. 2018). 
12 

522 (7th Cir. 2013). Accordingly, Defendants are not entitled to attorney’s fees under 42 U.S.C. § 

1988. 

C. Conclusion 

 For the foregoing reasons, this Court ORDERS the Clerk of this Court to tax costs in favor 

of Defendants and against Plaintiff in the amount of $1,905.49. Defendant’s Petition for Defense 

Costs and Attorney Fees (ECF No. 98) is DENIED in all other respects. 

SO ORDERED on January 23, 2020. 

 s/ Holly A. Brady 

JUDGE HOLLY A. BRADY 

UNITED STATES DISTRICT COURT