Sergei Kovalev v. City of Philadelphia ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-1904
__________
SERGEI KOVALEV,
Appellant
v.
CITY OF PHILADELPHIA;
PAULA WEISS, EXECUTIVE DIRECTOR OF PHILADELPHIA
OFFICE OF ADMINISTRATIVE REVIEW, IN HER INDIVIDUAL CAPACITY;
YOLANDA KENNEDY, CLERICAL SUPERVISOR OF PHILADELPHIA
OFFICE OF ADMINISTRATIVE REVIEW, IN HER INDIVIDUAL CAPACITY;
ANGELINEL BROWN, DEPUTY SHERIFF SERGEANT OF PHILADELPHIA
SHERIFF’S OFFICE, IN HER INDIVIDUAL CAPACITY
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-16-cv-06380)
District Judge: Honorable Mark A. Kearney
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 1, 2021
Before: CHAGARES, PHIPPS and COWEN, Circuit Judges
(Opinion filed: October 1, 2021)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Pro se appellant Sergei Kovalev appeals from the District Court’s order granting in
part and denying in part his motion to vacate the District Court Clerk’s taxation of costs.
For the following reasons, we will affirm the District Court’s judgment.
I.
Kovalev filed suit against the City of Philadelphia (“the City”) and three of its
employees. Kovalev asserted in his complaint that trash-collection fees were improperly
assessed against his property (a purported house of worship); that he attended an October
2015 hearing before the City’s Office of Administrative Review, and then a December
2015 hearing in front of the City’s Tax Review Board, to challenge those fees; that he
received unfavorable decisions; and that his treatment by defendants during the
administrative review process was tortious, unconstitutional, and retaliatory. The only
claims of Kovalev’s that survived dispositive motions—claims of First Amendment
retaliation against defendants Yolanda Kennedy and Paula Weiss—fell short at the end of
a three-day jury trial. Kovalev appealed, and we affirmed. See Kovalev v. City of
Philadelphia, 775 F. App’x 72, 77 (3d Cir.) (per curiam), cert. denied sub nom. Kovalev
v. City of Philadelphia, Pa., 140 S. Ct. 620 (2019).
Counsel for Kennedy and Weiss filed a bill of costs in the District Court shortly
after the conclusion of the jury trial in January 2018. Kovalev objected to the bill on
several grounds, including his pending appeal. After our mandate issued in mid-2019,
the Clerk of the District Court sent a letter to the parties requesting written objections
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from Kovalev to the bill of costs. Kovalev promptly responded with updated objections
and argued, inter alia, that he intended to file a petition for a writ of certiorari with the
United States Supreme Court and that the Clerk and District Court should wait to
consider the defendants’ bill of costs until that petition was resolved. The Supreme Court
denied Kovalev’s petition in December 2019. Within a month, Kovalev filed two new
lawsuits in the District Court based in part on the conduct of the first case, naming
Kennedy and Weiss among the defendants in both new actions. The District Court
dismissed both complaints sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and we
affirmed in both cases. See Kovalev v. Claiborne, 829 F. App’x 592, 593 (3d Cir. 2020)
(per curiam); Kovalev v. City of Philadelphia, 833 F. App’x 972, 974 (3d Cir. 2021) (per
curiam).
In April 2021, the Clerk of the District Court taxed the costs requested in the bill
of costs submitted for Weiss and Kennedy and entered a corresponding judgment in their
favor against Kovalev in the amount of $2,344.33. Kovalev moved for review and to
vacate the taxation of costs and judgment. The District Court reduced the taxation of
costs by $335.30 but otherwise denied Kovalev’s motion. Kovalev appeals.
II.
We have jurisdiction under 28 U.S.C. § 1291. See In re Paoli R.R. Yard PCB
Litig., 221 F.3d 449, 456 (3d Cir. 2000). “[I]n reviewing the District Court’s decision to
impose costs in this case, we exercise plenary review as to legal questions pertaining to
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Rule 54(d)(1). In reviewing the District Court’s application of those legal precepts, we
reverse only if that application exceeded the bounds of discretion.” Id. at 458.
III.
Federal Rule of Civil Procedure 54(d)(1) creates a strong presumption that costs,
as defined by the relevant statutes and caselaw, are to be awarded to a prevailing party.
In re Paoli, 221 F.3d at 462, 468. “[T]he losing party bears the burden of making the
showing that an award is inequitable under the circumstances.” Id. at 462-63.
Kovalev argues that the District Court lacked jurisdiction to award costs because
of the delay of more than a year between the Supreme Court’s denial of his petition for a
writ of certiorari and the Clerk’s judgment awarding costs. He relies on the guidance in
Federal Rule of Civil Procedure 1 that the Rules “should be construed, administered, and
employed by the court and the parties to secure the just, speedy, and inexpensive
determination of every action and proceeding.” Kovalev does not cite, and we are not
aware of, any authority specifically imposing any time limit on the District Court’s
authority to award costs after a timely motion.
We need not consider here whether there is any potential limit, as we determine
that the District Court did not err in awarding costs despite the delay in this case.
Kennedy and Weiss prevailed at trial and timely filed their bill of costs. Kovalev
reasonably asked the Clerk of the District Court to refrain from ruling on the bill of costs
until his appeals were fully resolved. Immediately after the Supreme Court denied
Kovalev’s petition for a writ of certiorari, he filed related cases concerning the conduct of
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this lawsuit, which were not fully resolved until early 2021. The Clerk of the District
Court awarded costs in this case in April 2021. Under these circumstances, the delay
between the final resolution of the merits and the award of fees does not displace the
“strong presumption” in favor of awarding costs. See In re Paoli, 221 F.3d at 462, 468;
cf. U.S. v. Hoffa, 497 F.2d 294, 296 (7th Cir. 1974) (affirming taxation of costs where
prevailing party filed bill of costs “within one year of the entry of the final order” after
appeals).
Kovalev next argues that Kennedy and Weiss cannot be awarded the costs at issue
because those costs were actually incurred by the City, which, despite being a prevailing
party, did not itself file a bill of costs. While the City was a defendant in this case, the
City’s Law Department represented Kennedy and Weiss.1 Kovalev argues that Kennedy
and Weiss cannot recover the costs of their defense because they have not shown that
they are personally liable for those costs. We disagree. Courts have permitted prevailing
parties to recover the costs of litigation even when those costs are borne by third parties.
See, e.g., Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639 (11th Cir. 1991)
(awarding costs where insured’s defense funded by insurer).2 Kovalev did not show that
any of the awarded costs were incurred only for the City’s own defense and were not
1
Kovalev emphasizes that he sued Kennedy and Weiss only in their personal capacities,
but that did not prevent the City from representing them.
2
Kovalev focuses his argument on the text of 28 U.S.C. § 1924. But the statute permits a
prevailing party’s attorney or agent to make the required affidavit and requires that the
costs be “necessarily incurred in the case,” not personally by the party.
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necessary to Kennedy and Weiss’s defense. The transcripts at issue, for instance, were
cited in the summary judgment briefing to specifically address Kovalev’s claims against
Kennedy and Weiss. Mem. and Op. 11, ECF No. 208; Defs.’ Mem. of Law 5-8, 13, 22-
24. The District Court correctly awarded costs to Kennedy and Weiss, even though the
City defended them in this case.
We have considered Kovalev’s remaining arguments, but they are not persuasive.
His allegations of unclean hands are meritless repetition of his previous claims. The
District Court did not abuse its discretion in considering Kovalev’s alleged indigency.
“[I]f a losing party is indigent or unable to pay the full measure of costs, a district court
may, but need not automatically, exempt the losing party from paying costs.” In re Paoli,
221 F.3d at 464. And the District Court did not abuse its discretion by rejecting
Kovalev’s remaining objections to specific costs after a detailed and reasoned analysis.
IV.
Accordingly, we will affirm the judgment of the District Court.
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