United States District Court, N.D. Indiana, Hammond Division
ANTHONY E. ELLO and EVELYN ELLO, Plaintiffs,
GARY R. BRINTON and SEVEN PEAKS MARKETING CHICAGO, LLC, Defendants.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
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.
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.
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.
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.
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
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
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
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).
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.”).
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 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)).
reasons stated above, Defendant Gary R. Brinton's Bill of
Costs [ECF No. 245] and the duplicate Bill ...