United States District Court, W.D. Wisconsin
WILLIAM WHITFORD, GRAHAM ADSIT, ROGER ANCLAM, WARREN BRAUN, HANS BREITENMOSER, JUDITH BREY, BRENT BRIGSON, EMILY BUNTING, SANDRA CARLSON-KAYE, GUY COSTELLO, TIMOTHY B. DALEY, MARGARET LESLIE DEMUTH, DANIEL DIETERICH, MARY LYNNE DONOHUE, LEAH DUDLEY, JENNIFER ESTRADA, BARBARA FLOM, HELEN HARRIS, GAIL HOHENSTEIN, WAYNE JENSEN, WENDY SUE JOHNSON, MICHAEL LECKER, ELIZABETH LENTINI, NORAH MCCUE, JANET MITCHELL, DEBORAH PATEL, JANE PEDERSEN, NANCY PETULLA, ROBERT PFUNDHELLER, SARA RAMAKER, ROSALIE SCHNICK, ALLISON SEATON, JAMES SEATON, ANN E. STEVNING-ROE, LINEA SUNDSTROM, MICHAEL SWITZENBAUM, JEROME WALLACE, DONALD WINTER, EDWARD WOHL, and ANN WOLFE, Plaintiffs,
BEVERLY R. GILL, JULIE M. GLANCEY, ANN S. JACOBS, JODI JENSEN, DEAN KNUDSON, and MARK L. THOMSEN, Defendants, and THE WISCONSIN STATE ASSEMBLY, Intervenor-Defendant.
OPINION AND ORDER
Kenneth F. Ripple Circuit Judge.
the court are Defendants Wisconsin Election Commission
members' Bill of Costs as well as Intervenor-Defendant
Wisconsin State Assembly's Bill of Costs and motion for
attorney's fees. For the reasons explained below, we deny
the Assembly's motion for attorney's fees and decline
to award costs to either defendant.
registered voters who support the election of Democratic
candidates and the implementation of Democratic policies,
filed this action against the members of the Wisconsin
Election Commission (collectively, “WEC”)
asserting that Wisconsin's Assembly redistricting map
constitutes an unconstitutional partisan gerrymander.
Plaintiffs claimed that the Republican-controlled legislature
created and enacted a redistricting plan (“Act
43”) that systematically dilutes the voting strength of
Democratic voters statewide. After a four-day trial, a
majority of the court concluded that the redistricting plan
embodied in Act 43 constituted an unconstitutional
gerrymander. See Whitford v. Gill, 218 F.Supp.3d 837
(W.D. Wis. 2016). The WEC appealed to the Supreme Court
pursuant to 28 U.S.C. § 1253. The Court vacated this
court's judgment and remanded the case to allow the court
to address the issue of standing. Gill v. Whitford,
138 S.Ct. 1932 (2018). On remand, the Wisconsin State
Assembly moved for, and was granted, leave to intervene as an
January 7, 2019, the defendants requested that the court stay
the case pending the resolution of Rucho v. Common
Cause, No. 18-422 (U.S.), and Lamone v.
Benisek, No. 18-726 (U.S.), two cases pending before the
Supreme Court that raised partisan gerrymandering claims. The
court denied the stay and allowed discovery to proceed but
rescheduled the trial to a date after which it anticipated
that the Supreme Court would issue its decisions in
Rucho and Lamone. Dkt. No. 42. On June 27,
2019, the Supreme Court held in Rucho v. Common
Cause, that “partisan gerrymandering claims
present political questions beyond the reach of the federal
courts.” 139 S.Ct. 2484, 2506-07 (2019). The parties
thereafter moved to dismiss this case based on the Supreme
Court's decision. On July 2, 2019, the court dismissed
the suit without prejudice for lack of jurisdiction and
entered judgment the following day. On July 15, 2019, the WEC
filed a Bill of Costs, requesting a total of $19, 308.59 in
costs, and the Assembly filed a Bill of Costs requesting $45,
043.40 in costs. The Assembly also filed a motion for
and the Assembly both request their costs associated with
this litigation. The Assembly contends it is entitled to
costs as a prevailing party under Rule 54(d)(1) of the
Federal Rules of Civil Procedure, which states in pertinent
part, “Unless a federal statute, these rules, or a
court order provides otherwise, costs-other than
attorney's fees-should be allowed to the prevailing
party.” The Rule “codifies a venerable
presumption that prevailing parties are entitled to
costs.” Marx v. Gen. Revenue Corp., 568 U.S.
371, 377 (2013). Plaintiffs argue, on the other hand, and the
WEC concedes, that requests for costs where, as here, a case
is dismissed for lack of jurisdiction are controlled by 28
U.S.C. § 1919, which states, “Whenever any action
or suit is dismissed in any district court, the Court of
International Trade, or the Court of Federal Claims for want
of jurisdiction, such court may order the payment of just
costs.” The WEC argues that it should be awarded its
costs as a matter of justice under § 1919.
agree with Plaintiffs and the WEC that the award of costs in
this case is governed by § 1919. There was no judgment
on the merits; the case was dismissed for lack of
jurisdiction. By its plain language, § 1919 therefore
applies. We also read § 1919, as has every other court
to address the issue in a decision brought to our attention,
as an exception to the presumption in favor of awarding costs
to the prevailing party codified in Rule 54(d)(1). See,
e.g., Otay Land Co. v. United Enters. Ltd., 672
F.3d 1152, 1156 (9th Cir. 2012) (“Unlike Rule 54(d)(1),
. . . a cost award under § 1919 does not turn on
prevailing party status and lies within the sound discretion
of the district court.”); Hygienics Direct Co. v.
Medline Indus., Inc., 33 Fed.Appx. 621, 625 (3d Cir.
2002) (“Because there is a statute, 28 U.S.C. §
1919, that expressly covers the situation here, i.e.,
dismissal for lack of subject matter jurisdiction, Rule
54(d)(1) is not applicable.”); Callicrate v.
Farmland Indus., Inc., 139 F.3d 1336, 1340 n.8 (10th
Cir. 1998) (noting that “there is a fundamental
distinction between awarding costs under § 1919, and
under § 1920 and Fed.R.Civ.P. 54(d), ” because
§ 1919 is permissive and “unlike costs awarded
under Rule 54, costs awarded under § 1919 are not
subject to a presumption that they shall be awarded to a
prevailing party”); see also, e.g., U.S.
ex rel. Atkinson v. Pa. Shipbuilding Co., No. 94-7316,
2007 WL 4270622, at *2 (E.D. Pa. Dec. 3, 2007)
(“Section 1919 is an express carve out from Rule 54(d)
and § 1920 . . . .”); Ohio Cas. Ins. Co. v.
Reed, No. 1:04-cv-2027-DFH-WTL, 2006 WL 3240501, at *1
n.1 (S.D. Ind. Nov. 2, 2006) (noting that “Rule 54(d)
cannot serve as the basis for an award of costs because
defendants are not ‘prevailing parties' under Rule
54(d) when the action is dismissed for lack of subject matter
jurisdiction” and that § 1919 would apply
instead); Ericsson GE Mobile Commcn's, Inc. v.
Motorola Commcn's & Elecs., Inc., 179 F.R.D.
328, 330 (N.D. Ala. 1998) (“Why is § 1919
controlling? Simply because this case was dismissed for lack
of jurisdiction. Section 1919 was expressly and specifically
designed to cover such a situation.”); Edward W.
Gillen Co. v. Hartford Underwriters Ins. Co., 166 F.R.D.
25, 27 (E.D. Wis. 1996) (“The parties erroneously
assert this case is controlled by Rule 54. Rather, it is
governed by 28 U.S.C. 1919.”). To hold otherwise would
be to read § 1919 out of existence.
this authority and the plain language of the statute, the
Assembly maintains that § 1919 does not displace Rule
54(d)(1) and that it is entitled to costs under Rule 54(d).
The Assembly's argument is predicated almost entirely on
Marx v. General Revenue Corp., 568 U.S. 371 (2013).
In Marx, the Supreme Court addressed the application
of Rule 54(d) to the Fair Debt Collection Practices Act's
(“FDCPA”) remedial scheme. There, the district
court found that Marx had failed to prove a violation of the
FDCPA and awarded costs to the defendant pursuant to Rule
54(d)(1). The plaintiff moved to vacate the award of costs,
arguing that § 1692k(a)(3) of the FDCPA set forth the
exclusive basis for awarding costs in FDCPA cases. That
section provides, in relevant part, “On a finding by
the court that an action under this section was brought in
bad faith and for the purpose of harassment, the court may
award to the defendant attorney's fees reasonable in
relation to the work expended and costs.” §
1692k(a)(3). Because it had not found the action was brought
in bad faith, the plaintiff argued the court lacked any basis
to award either attorney's fees or costs to the
defendant. The district court denied the motion, finding that
§ 1692k(a)(3) did not displace its discretion to award
costs under Rule 54(d)(1), and the Tenth Circuit affirmed.
Supreme Court granted certiorari to address “whether a
prevailing defendant in an FDCPA case may be awarded costs
where the lawsuit was not brought in bad faith and for the
purpose of harassment.” 568 U.S. at 376. In other
words, the issue in Marx was whether a district
court retains discretion to award statutory costs to the
prevailing defendant under Rule 54(d)(1), notwithstanding the
provision of the FDCPA allowing an award to the defendant of
reasonable attorney's fees, as well as costs, upon a
finding that the action was brought in bad faith. That, of
course, is not the issue here. There is no dispute in this
case that the court has discretion to award costs to the
defendants; the issue here is whether Rule 54(d)(1)'s
presumption in favor of costs to the prevailing party applies
when a case is dismissed for lack of jurisdiction.
Marx is silent on that issue. What Marx did say is
that “[a] statute may limit a court's discretion in
several ways, and it need not expressly state that it is
displacing Rule 54(d)(1) to do so.” Id. at
377. As the above cases hold, § 1919, by its plain
terms, clearly displaces Rule 54(d)(1) where an action is
dismissed for lack of jurisdiction. That is what occurred
here. Rule 54(d)(1) thus does not apply.
remains the question of whether an award of costs to the
defendants is just. While the Seventh Circuit has not
addressed what constitute “just costs” under
§ 1919, the Ninth Circuit has instructed that, in
awarding “‘just costs' under [Section] 1919,
a district court should consider what is most fair and
equitable under the totality of the circumstances.”
Otay Land Co., 672 F.3d at 1157. Upon consideration
of the totality of the circumstances surrounding the case, we
conclude that requiring the individual Plaintiffs to pay the
defendants' costs under § 1919 would not be just.
Plaintiffs brought this action to remedy what they in good
faith believed was the unconstitutional diminishment of their
ability to cast a vote for meaningful representation in the
State Assembly. A majority of this court initially ruled in
their favor. The Supreme Court vacated the court's
decision and remanded the case to allow Plaintiffs the
opportunity to establish standing. Gill, 138 S.Ct.
at 1934. But before Plaintiffs had the opportunity to present
their evidence of standing, the Court ruled that partisan
gerrymandering cases were not justiciable. In so ruling, the
Court did not hold that Act 43 was lawful; in fact, the
majority acknowledged that “[e]xcessive partisanship in
districting leads to results that reasonably seem unjust,
” Rucho, 139 S.Ct. at 2506, and is
“incompatible with democratic principles.”
Id. (quoting Ariz. State Legislature v. Ariz.
Indep. Redistricting Comm'n, 135 S.Ct. 2652, 2658
(2015)). Instead, the Court held that such claims present
political questions beyond the reach of the federal courts.
Id. at 2506-07.
not unreasonable for Plaintiffs to seek redress in the
federal courts. Indeed, more than thirty-five years ago, a
majority of the Court appeared to have held that such claims
were justiciable. See Davis v. Bandemer, 478 U.S.
109 (1986). And even though eighteen years later a plurality
rejected the tests for the constitutionality of districting
plans that lower courts had attempted to apply in the
meantime, see Vieth v. Jubelirer, 541 U.S. 267
(2004), the central holding of Bandemer that
political gerrymandering claims may be justiciable was not
overturned. Instead, interested parties and lower courts were
left to continue their search for a judicially discernable
and manageable standard for identifying unconstitutional
partisan gerrymanders. That is what Plaintiffs sought to
accomplish with this lawsuit. When the Court unequivocally
held in Rucho that such claims were not justiciable,
Plaintiffs immediately agreed to dismissal.
Assembly argues that Plaintiffs unreasonably opposed the
defendants' request to stay the case after the Supreme
Court granted certiorari in Rucho and
Lamone and it became clear that the Court's
decision in those cases could dispose of this case too, as it
ultimately did. “From that point on, ” the
Assembly argues, “Plaintiffs bore the risk of forging
ahead with costly litigation.” Assembly Mot. for
Atty's Fees at 2, Dkt. No. 326. But this argument ignores
the fact that this court, realizing time was of the essence
if any remedy were to be possible before the 2020 elections,
denied the defendants' motion to stay the case entirely
and instead moved the trial to commence shortly after the