Easterbrook Notes Split Re Whether Unsuccessful Indigent Litigants Must Pay Costs under FRCP 54(d)

Judge Easterbrook recently had the chance to note a circuit split in a concurring opinion in Rivera v. City of Chicago, --- F.3d ----, 2006 WL 3360536 (7th Cir. 2006):

"The court sensibly rejects Chicago's proposal to overrule Badillo v. Central Steel & Wire Co., 717 F.2d 1160 (7th Cir.1983), and its successors, which allow district judges to excuse unsuccessful but indigent litigants from paying costs under Fed.R.Civ.P. 54(d). Whether indigent litigants must be ordered to pay statutory costs is a subject that has divided the circuits. Only the Supreme Court or an amendment under the Rules Enabling Act can produce national uniformity; there is little point in our moving restlessly from one side of the conflict to the other."


At 4:38 PM, Blogger ziemer said...

The court cites the Sixth Circuit case of McDonald v. Petree, 409 F.3d 724 (6th Cir. 2005), as holding that districts courts are expressly prohibited from considering a losing party's indigence when awarding costs in that circuit.

However, what McDonald, and previous Sixth Circuit cases, such as White & White, Inc., v. American Hosp. Supply Corp., 786 F.2d 728 (6th Cir. 1986), actually hold, is something different. They hold that "the ability of the PREVAILING party to pay his or her costs" is an inappropriate factor to consider (emphasis added). White, 786 F.2d at 730; McDonald, 409 F.3d at 732.

So, notwithstanding the lead opinion's assumption, and Judge Easterbrook's lengthy concurrence as to why the non-prevailing party's indigence should be irrelevant, there is not actually an intercircuit split of authority on this issue.


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