This is a situation you don’t want to find yourself in: 1. Your pleadings are struck as a sanction. 2. Court refuses to award fees and costs as part of the sanction. 3. Nonetheless, Defendant seeks award of costs as “prevailing party.” Are they recoverable?
Judge Seitz says yes:
Plaintiff first argues that the Sanctions Order precludes an award of costs. Plaintiff relies on the Court’s conclusion, in the Sanctions Order, that “assessing attorneys’ fees and costs against Aguiar in addition to the dismissal of his claims and pleadings would amount to an abuse of the Court’s discretion and would not be an appropriate sanction under the circumstances.” See DE-301 at 28. Plaintiff argues that to impose costs would violate the Court’s previous ruling and would add additional monetary sanctions to the Sanctions Order. Despite Plaintiffs Objection, the Sanctions Order does not foreclose the awarding of costs pursuant to Federal Rule of Civil Procedure 54(d)(I) and 28 U.S.c. § 1920. The Sanctions Order specifically declined to award costs as a sanction; it did not address awarding costs to the prevailing party. Plaintiff has not objected to the finding that Katten was a prevailing party. Thus, this objection is overruled and Katten is entitled to costs as a prevailing party.
On a positive note, however, the plaintiff was not assessed costs for bates-numbering, so you could look at it as a partial-victory.