UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

ANTHONY E. ELLO and EVELYN ELLO, 

 Plaintiffs, 

v. CAUSE NO.: 2:14-CV-299-TLS 

GARY R. BRINTON and SEVEN PEAKS 

MARKETING CHICAGO, LLC, 

 Defendants. 

OPINION AND ORDER 

This matter is before the Court on Defendant Gary R. Brinton’s Bill of Costs [ECF No. 

245] and a duplicate Bill of Costs [ECF No. 246], filed pursuant to Federal Rule of Civil 

Procedure 54(d) on October 30, 2019. For the reasons stated below, the Defendant’s request is 

DENIED. 

BACKGROUND 

On May 27, 2015, the Plaintiffs filed an Amended Complaint [ECF No. 24] against Gary 

R. Brinton and Seven Peaks Marketing Chicago, LLC. The case involved a contractual dispute 

over the lease of a bowling alley. Am. Compl. ¶ 1. Generally speaking, the Plaintiffs leased a 

bowling alley to Seven Peaks, and Gary Brinton was the managing member of Seven Peaks. See 

id. ¶¶ 27, 47. Within their Amended Complaint, the Plaintiffs asserted that Seven Peaks breached 

the lease agreement (Count I); Brinton was personally liable for the breach because Seven Peaks 

did not comply with corporate formalities (Count II); and Seven Peaks and Gary Brinton 

committed fraud (Count III). On November 24, 2015, Seven Peaks filed an Answer in which it 

asserted counterclaims for (I) breach of contract; (II) breach of implied covenant of good faith 

and fair dealing; and (III) unjust enrichment. Answer ¶¶ 60–102, ECF No. 46. 
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On June 10, 2015, the Defendants filed a Partial Motion to Dismiss Amended Complaint 

[ECF No. 26]. On November 10, 2015, the Court denied the Defendants’ Partial Motion to 

Dismiss. See Op. & Order, ECF No. 42. 

On August 14, 2017, Brinton filed a Motion for Summary Judgment [ECF No. 126] and 

Seven Peaks filed a Motion for Summary Judgment [ECF No. 128]. On August 17, 2017, 

Brinton filed an Amended Motion for Summary Judgment [ECF No. 131]. On March 28, 2018, 

the Honorable Rudy Lozano granted Brinton’s Motions for Summary Judgment. Op. & Order p. 

27, ECF No. 147. Seven Peaks’ Motion for Summary Judgment was granted in part and denied 

in part. Id. Based upon this ruling, Gary Brinton was dismissed from the case, and Counts II and 

III of the Amended Complaint were dismissed. Id. Count I of the Amended Complaint (breach of 

contract) remained pending against Seven Peaks. Id. 

In September 2019, the case proceeded to a jury trial on Plaintiffs’ breach of contract 

claim and Seven Peaks’ counterclaims for breach of contract, breach of implied covenant of 

good faith and fair dealing, and unjust enrichment. Ultimately, the jury found in favor of the 

Plaintiffs and awarded damages in the amount of $454,250.00. See Special Interrogatory and 

Jury Verdict, p. 2, ECF No. 237. On October 30, 2019, Brinton filed the instant Bill of Costs. 

ANALYSIS 

Brinton argues that he prevailed at summary judgment and is therefore entitled to costs 

pursuant Federal Rule of Civil Procedure 54(d). The Court, in an exercise of discretion, declines 

this request. 

Federal Rule of Civil Procedure 54(d) provides that, “[u]nless a federal statute, these 

rules, 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 28 U.S.C. § 1920 (listing recoverable 
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costs). “Rule 54(d)(1) provides a presumption that costs are awarded to the prevailing party, and 

the burden is on the non-prevailing party to overcome this presumption.” Rivera v. City of 

Chicago, 469 F.3d 631, 636 (7th Cir. 2006) (citing Fed. R. Civ. P. 54(d)(1)). “For the purposes 

of Rule 54, a party is deemed ‘prevailing’ if it prevails as to a substantial part of the litigation.” 

Baker v. Lindgren, 856 F.3d 498, 502 (7th Cir. 2017) (quoting Testa v. Vill. of Mundelein, Ill., 89 

F.3d 443, 447 (7th Cir. 1996)); see also First Commodity Traders, Inc. v. Heinold Commodities, 

Inc., 766 F.2d 1007, 1015 (7th Cir. 1985) (“As used in Rule 54(d), ‘prevailing party’ means a 

party who has obtained some relief in an action, even if that party has not sustained all of his or 

her claims.”). “In a case with mixed results, the district court has the discretion to determine 

whether a party meets that standard.” Baker, 856 F.3d at 502. Furthermore, in a case with mixed 

results, the district court retains especially broad discretion to award or deny costs. Id.; Gavoni v. 

Dobbs House, Inc., 164 F.3d 1071, 1075 (7th Cir. 1999).

In this case, Brinton was successful at summary judgment. However, the Plaintiffs’ claim 

for breach of contract against Seven Peaks survived summary judgment and proceeded to trial. 

At trial, the jury awarded the Plaintiffs almost half a million dollars on their breach of contract 

claim. See Slane v. Mariah Boats, Inc., 164 F.3d 1065, 1068 (7th Cir. 1999) (“Slane got 

$225,000 from the jury. By any definition, he won the battle. The court’s conclusion that Slane 

prevailed was more than reasonable.”). 

Based upon this, the Court finds that this is a case with mixed results. See Thorncreek 

Apartments I, LLC v. Vill. of Park Forest, 123 F. Supp. 3d 1012, 1014–15 (N.D. Ill. 2015) (case 

resulted in a “mixed result” when the plaintiff only prevailed against two out of eleven 

defendants). In an exercise of discretion, the Court orders that each party is to bear its own court 

costs. Baker, 856 F.3d at 502; see Testa, 89 F.3d at 447 (“District courts enjoy wide discretion in 
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determining and awarding reasonable costs. Considering the mixed outcome of the civil rights 

and malicious prosecution claims, the decision requiring each party to bear its own costs is 

within that discretion.” (internal citations omitted)); Thorncreek Apartments I, 123 F. Supp. 3d at 

1015 (“Where a plaintiff prevails against some defendants but loses against others, one option is 

to tax the plaintiff’s costs to the losing defendants and the winning defendants’ costs to the 

plaintiff. A simpler option is for the parties to bear their own respective costs . . . .” (citation 

omitted)). 

CONCLUSION 

For the reasons stated above, Defendant Gary R. Brinton’s Bill of Costs [ECF No. 245] 

and the duplicate Bill of Costs [ECF No. 246] are DENIED. 

SO ORDERED on December 20, 2019. 

 s/ Theresa L. Springmann 

 CHIEF JUDGE THERESA L. SPRINGMANN 

 UNITED STATES DISTRICT COURT