UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHN HEALY, by MARGARET

HEALY, his Legal Guardian,

Plaintiff,

v. Case No. 08-14320

Honorable Patrick J. Duggan

SEARS, ROEBUCK & CO.,

Defendant.

____________________________/

OPINION AND ORDER DENYING PLAINTIFF’S OBJECTIONS

AND GRANTING DEFENDANT’S OBJECTIONS TO ENTRY OF TAXABLE

COSTS

At a session of said Court, held in the U.S.

District Courthouse, Eastern District

of Michigan, on August 3, 2009.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

 U.S. DISTRICT COURT JUDGE

Margaret Healy, mother and legal guardian of John Healy (“Plaintiff”), initiated

this action in state court against Defendant Sears Roebuck and Company (“Sears”),

alleging handicap discrimination in violation of Michigan’s Persons with Disabilities

Civil Rights Act, Mich. Comp. Laws §§ 37.1101-37.1607. On October 10, 2008, Sears

removed Plaintiff’s complaint to this Court based on diversity jurisdiction, 28 U.S.C.

§§ 1332, 1441. Sears thereafter filed a motion for summary judgment, which this Court

granted in an Opinion and Order entered on July 21, 2009 On the same date, the Court

entered a judgment in favor of Sears and against Plaintiff.

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On July 24, 2009, Sears filed its Bill of Costs, seeking costs in the amount of

$1,298.50. This total reflects the $350 removal filing fee and $948.50 in court reporter

fees. The Clerk of the Court taxed costs against Plaintiff in the amount of $350 on July

24, 2009. The Clerk of the Court indicated that the court reporter fees were not allowed

because “there is no documentation showing how the deposition transcripts were used.”

Currently before the Court are Plaintiff’s and Sears’ timely objections to the entry

of taxable costs. Plaintiff argues that it should not be taxed for the removal filing fee

because removal was voluntary and the complaint was properly filed initially in state

court. Sears argues that costs should have been taxed for the court reporter fees because

the deposition transcripts were used in support of its summary judgment motion.

Rule 54(d) of the Federal Rules of Civil Procedure provides in part: “Unless a

federal statute, these rules, or a court order provides otherwise, costs– other than

attorney’s fees– should be allowed to the prevailing party.” The Sixth Circuit has

described this rule as “establish[ing] a norm of action: prevailing parties are entitled to

their costs as of course.” Goostree v. State of Tennessee, 796 F.2d 854, 863 (1986)

(citation omitted). Departures from this rule are permitted, nevertheless, “‘. . . the court’s

discretion is more limited than it would be if the rule were nondirective.’” Id. (quoting

Coyne-Delaney Co. v. Capital Dev. Bd. of State of Illinois, 717 F.2d 385, 392 (7th Cir.

1983)). “‘It is incumbent upon the unsuccessful party to show circumstances sufficient to

overcome the presumption’ favoring an award of costs to the prevailing party.” Id.

(quoting Lichter Found., Inc. v. Welch, 269 F.2d 142, 146 (6th Cir. 1959)).

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If a plaintiff “voluntarily” files a lawsuit in federal court and prevails, that plaintiff is

entitled to recover the filing fee as part of the costs. If a defendant “voluntarily” removes a case

to federal court, pays the filing fee, and prevails, there is no reason such defendant should not be

entitled to recover the filing fee as part of the costs.

3

Pursuant to 28 U.S.C. § 1920(1), fees of the clerk are taxable. The United States

District Court for the Eastern District of Michigan Bill of Costs Handbook (“Handbook”)

expressly includes the removal filing fee as fees of the clerk. Plaintiff fails to overcome

the presumption that this cost should be awarded in this matter. There is nothing in the

Handbook or the federal statute that prohibits the award of removal filing fees or treats

the award of such fees differently because the removal is “voluntary.”1

The costs of transcripts are taxable pursuant to § 1920, provided they are

“necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). Where a party seeks

court reporter fees associated with transcripts, the Handbook advises counsel to provide

the taxation clerk with the title of the motion for which the transcripts were used and the

date the motion was filed. Sears failed to provide this information when it submitted its

Bill of Costs, however, it now has provided the Court with this information. As portions

of the transcripts of Margaret Healy, Diane Konen, Jennifer Cherget, and Edward Rogers

were submitted in support of Sears’ summary judgment motion, the court reporter fees

associated with those transcripts should be taxed against Plaintiff.

The Court therefore concludes that costs should be taxed against Plaintiff in the

full amount requested by Sears.

Accordingly,

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IT IS ORDERED, that Plaintiff’s objection to the taxed bill of costs is DENIED

and Sears’ objection to the taxed bill of costs is GRANTED;

IT IS FURTHER ORDERED, that costs are taxed against Plaintiff in the amount

of $1,298,50.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Scott E. Combs, Esq.

Charles C. DeWitt, Jr., Esq.

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