Judges: PerCuriam
Filed: Dec. 10, 2013
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted December 9, 2013* Decided December 10, 2013 Before RICHARD D. CUDAHY, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 13-1062 ALFRED F. COTE, Appeal from the United States District Plaintiff-Appellant, Court for the Central District of Illinois. v. No. 09-C-1060 SARAH STUECKER and DAN
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted December 9, 2013* Decided December 10, 2013 Before RICHARD D. CUDAHY, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 13-1062 ALFRED F. COTE, Appeal from the United States District Plaintiff-Appellant, Court for the Central District of Illinois. v. No. 09-C-1060 SARAH STUECKER and DANN..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 9, 2013*
Decided December 10, 2013
Before
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 13‐1062
ALFRED F. COTE, Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v. No. 09‐C‐1060
SARAH STUECKER and
DANNY LEEZER, Michael M. Mihm,
Defendants‐Appellees. Judge.
O R D E R
*
After examining the parties’ briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 13‐1062 Page 2
State and local police officers arrested Fred Cote and his wife at their home in
Hancock County, Illinois. The Cotes later sued two of the arresting officers, Danny
Leezer and Sarah Stuecker, claiming violations of the Constitution and state law during
their arrests. (The Cotes brought related claims against a number of other defendants,
but none of those claims or defendants is relevant to this appeal.) A jury found in favor
of Leezer and Stuecker, and neither Fred Cote nor his wife filed a timely appeal on the
merits. Fred Cote has appealed from the order awarding costs to Leezer and Stuecker,
which we affirm.
Much of Cote’s appeal centers on the Chapter 7 bankruptcy petition he and his
wife filed shortly before trial. The Cotes identified their claims against Leezer and
Stuecker as assets of the bankruptcy estate, but the defendants and the district court
were not aware of the Chapter 7 case until after trial. The district court entered its final
judgment on July 31, 2012, and the next day Leezer filed a bill of costs. Only then did
Fred Cote disclose the pending bankruptcy case to Leezer’s attorney, who notified the
district court and asked that action on Leezer’s bill of costs be stayed. The court put
aside the matter of costs for both defendants until October 30, 2012. By then the
Chapter 7 trustee had abandoned the Cotes’ claims against the two defendants and
certified that the bankruptcy estate had been fully administered. With the bankruptcy
case now closed, the district court entered an amended judgment on November 1, 2012,
that includes an award of $2,661 in costs for Leezer and $3,770 for Stuecker. The court
noted that the Cotes had not submitted proof of their asserted indigence and thus
rejected their contention that financial problems should excuse them from paying. The
court also rejected the plaintiffs’ contention that Leezer had engaged in discovery
misconduct that warranted withholding his costs. And, finally, the court concluded that
the bankruptcy case did not present a legal impediment to awarding costs. Only then
did Fred Cote file his notice of appeal.
Cote’s brief largely challenges his loss on the merits at trial, but before briefing
we issued an order alerting him that this appeal is limited to questions concerning the
award of costs under Federal Rule of Civil Procedure 54(d). We thus disregard his brief
to the extent that it fails to comply with our order. Our review is limited to the award of
costs, which we will uphold absent an abuse of discretion. See U.S. Neurosurgical, Inc. v.
City of Chicago, 572 F.3d 325, 333 (7th Cir. 2009).
About the award of costs, Cote first argues that the district court should have
accepted his claim of indigence. Rule 54(d) comes with a strong presumption in favor of
awarding costs to the prevailing party. U.S. Neurosurgical, 572 F.3d at 333. District courts
No. 13‐1062 Page 3
have discretion to deny costs if the losing party is unable to pay, Mother & Father v.
Cassidy, 338 F.3d 704, 708 (7th Cir. 2003), but a litigant asserting indigence must furnish
proof of his inability to pay, Corder v. Lucent Technologies Inc., 162 F.3d 924, 929 (7th Cir.
1998); McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994). In objecting to the defendants’
bills of costs, Cote asserted indigence but presented no proof whatsoever. In fact, the
only evidence of his financial condition was the application to proceed
in forma pauperis that the plaintiffs had filed at the start of the case; the district court
had denied their application after concluding that the Cotes were not indigent. The
district court was not given contrary evidence before costs were assessed, and thus the
court could not have abused its discretion by enforcing the presumption in favor of
costs.
Cote next argues that costs should have been withheld from Leezer because,
according to Cote, Leezer engaged in “misconduct” by not providing him a legible copy
of a police training manual in use at the time the Cotes were arrested. This contention is
frivolous. We have recognized that a winning party might be denied costs for engaging
in misconduct worthy of a penalty, such as prolonging the proceedings to run up
litigation expenses. See Weeks v. Samsung Heavy Indus., Co., 126 F.3d 926, 945 (7th Cir.
1997); Congregation of the Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219,
222 (7th Cir. 1988). What Cote characterizes as misconduct amounts to a quibble about
the quality of the copy originally provided to him; after Cote complained, Leezer
obtained and tendered a better copy of the police manual. That was the end of the
matter. Moreover, to the extent that Cote makes new allegations of misconduct for the
first time on appeal, he waived reliance on those allegations by not presenting them to
the district judge. See King v. Ill. State Bd. of Elections, 410 F.3d 404, 424 (7th Cir. 2005).
Last, Cote makes two arguments stemming from the bankruptcy. He first argues
that the costs constitute a pre‐petition debt which was wiped away by his discharge in
bankruptcy. Even if costs are subject to discharge, cf. Bethea v. Robert J. Adams & Assoc.,
352 F.3d 1125, 1127 (7th Cir. 2003) (explaining that pre‐petition debts for legal fees are
subject to discharge), Cote did not incur the liability until Leezer and Stuecker had
gained the legal right to payment—at the very earliest in July 2012 when the jury
returned a verdict in the defendants’ favor. See 11 U.S.C. § 101(5); Johnson v.
Home State Bank, 501 U.S. 78, 83 (1991) (defining “claim” to be an enforceable
obligation); Eastern Trading Co. v. Refco, Inc., 229 F.3d 617, 627 (7th Cir. 2000) (explaining
that attorneys’ fees is issue for resolution after verdict); Fogel v. Zell, 221 F.3d 955, 960
(7th Cir. 2000) (defining “claim” as legal right to payment arising only after a debt‐
generating event, e.g., commission of a tort). The verdict came months after the Cotes
No. 13‐1062 Page 4
filed for bankruptcy, and their discharge erased only pre‐petition liabilities. See 11
U.S.C. § 727(b); In re Smith, 582 F.3d 767, 771 (7th Cir. 2009); Matter of Birkenstock, 87 F.3d
947, 950 (7th Cir. 1996).
Cote further contends that he should be liable only for costs incurred after the
bankruptcy court issued the discharge. Before then, Cote says, his claims against Leezer
and Stuecker were part of the bankruptcy estate and in the hands of the trustee. But
when the trustee abandoned those claims, they reverted to the Cotes, whom we treat as
having owned them all along. See Morlan v. Universal Guar. Life Ins. Co., 298 F.3d 609,
617 (7th Cir. 2002); Moses v. Howard Univ. Hosp., 606 F.3d 789, 791 (D.C. Cir. 2010); Kane
v. Natʹl Union Fire Ins. Co., 535 F.3d 380, 385 (5th Cir. 2008). So any argument Cote
makes that rests on the assumption that the trustee, and not he, owns any part of the
lawsuit, is without merit.
AFFIRMED.