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Hannan v. Auto-Owners Insurance Co.

United States District Court, E.D. Missouri, Eastern Division

October 14, 2014

PHYLLIS HANNAN, Plaintiff,
v.
AUTO-OWNERS INSURANCE COMPANY, Defendant.

MEMORANDUM AND ORDER

E. RICHARD WEBBER, District Judge.

This matter comes before the Court on Defendant's Amended Bill of Costs [ECF No. 74].

I. BACKGROUND

This case arises out of wind, hail, and rain damage sustained to Plaintiff Phyllis Hannan's ("Plaintiff") property after multiple storms. Plaintiff filed a "Petition for Recovery Under a Property Insurance Policy" in the Circuit Court of Montgomery County, Missouri, on May 14, 2013, asserting claims for breach of contract and vexatious refusal to pay [ECF Nos. 1-1, 6]. On June 6, 2013, Defendant Auto-Owners Insurance Company ("Defendant") filed a Notice of Removal, removing the cause to this Court on the basis of diversity jurisdiction, pursuant to 28 U.S.C. ยงยง 1332 and 1446 [ECF No. 1].

On July 30, 2014, the jury returned a verdict for Defendant and against Plaintiff [ECF No. 68]. On July 31, 2014, the Clerk of Court entered judgment in accordance with the verdict, ordering that Plaintiff take nothing on her Complaint against Defendant, the action be dismissed on the merits, and Plaintiff bear all taxable costs of the action [ECF No. 72].

Defendant filed a Bill of Costs on August 25, 2014 [ECF No. 73]. Defendant then filed an Amended Bill of Costs on August 26, 2014 [ECF No. 74]. Plaintiff filed a Memorandum in Opposition to Defendant's Bill of Costs and Amended Bill of Costs ("Memorandum in Opposition"), urging the Court to deny Defendant's Amended Bill of Costs, because it was untimely filed and in the alternative the Bill of Costs was not adequately itemized or documented. Defendant filed a Response to Plaintiff's Memorandum in Opposition to Amended Bill of Costs ("Response") on September 5, 2014 [ECF No. 76]. In this filing, Defendant waived $1, 022.15 of the sum sought in the Amended Bill of Costs; therefore, some of Plaintiff's objections are moot. Defendant now claims $7, 140.77 in costs, representing fees of the Clerk, fees for witnesses, fees of the Court Reporter, fees for service of subpoenas and fees for copies of papers. For the sake of clarity, the Court limits its discussion to amounts comprising the $7, 140.77 currently sought by Defendant; unless otherwise stated, the Court will not discuss waived amounts.

II. DISCUSSION

A. Untimely Waiver

Local Rule 54-8.03 requires a verified Bill of Costs to be filed within twenty-one (21) days after entry of judgment. Failure to file timely may constitute waiver. L.R. 54-8.03. Here, Defendant's Bill of Costs was due on August 21, 2014 and was filed on August 25, 2014 [ECF No. 73] with an Amended Bill of Costs filed on August 26, 2014 [ECF No. 74]. Federal Rule of Civil Procedure 6(b)(1) states that the court may, for good cause, extend the time period. If it is after the original time period has expired, the court may extend the time if a motion is made and the failure to act is due to excusable neglect. Fed.R.Civ.P. 6(b)(1)(B). Excusable neglect allows the court to extend the deadline if the failure to meet it was "caused by inadvertence, mistake, or carelessness..." See Kurka v. Iowa Cnty, Iowa, 628 F.3d 953, 959 (8th Cir. 2010) (quoting Chorosevic v. MetLife Choices, 600 F.3d 934, 946 (8th Cir. 2010)). All of the relevant circumstances should be taken into account when determining if neglect is excusable with a focus on the following four factors: the possibility of prejudice to the plaintiff, the length of the delay and impact on the proceedings, the reason for the delay, and whether the party acted in good faith. Id.

Defendant states that the Bill of Costs was filed late because of a miscalculation of the deadline [ECF No. 76]. The delay of two business days has not caused any prejudice to the Plaintiff nor has it caused an impact on the proceedings as briefing was completed before the originally scheduled time allowed. There is no reason to doubt Defendant's good faith. See Sugarbaker v. SSM Health Care, 187 F.3d 853, 856 (8th Cir. 1999). Defendant has established the delay was due to excusable neglect.

Local Rule 6-1.05 also allows the Court to extend or shorten any time limit imposed by the Local Rules for good cause. This standard has been met as the failure to meet the deadline was due to excusable neglect. For reasons discussed, the Court does not find the Bill of Costs waived for untimeliness.

B. Fees Requested [1]

Rule 54(d) of the Federal Rules of Civil Procedure provides that "costs-other than attorney's fees-should be allowed to the prevailing party." See also In re Derailment Cases, 417 F.3d 840, 844 (8th Cir. 2005) ("A prevailing party is presumptively entitled to recover all of ...


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