Seventh Circuit Reverses Order Denying Costs Because The Case Was "Close"

Can federal courts deny a prevailing party litigation costs because it was a close case? According to the Seventh Circuit's recent opinion in United States ex rel. Pileco, Inc. v. Slurry Systems, Inc., No. 14-1267 (7th Cir. Oct. 28, 2015), written by Judge Richard Posner, the answer is "yes," though only under limited circumstances, when the loser is indigent.

Pileco arose out of a dispute regarding an allegedly defective 40-ton trench-cutting machine, sold by Pileco to Slurry for use on a Corps of Engineers project. The bulk of the court's opinion concerned the case's odd procedural history, which featured two trials—the first a $23.4 million net win for Slurry, and the second a $2.23 million net win for Pileco. The retrial had been ordered on account of jury confusion the first time around, and, not surprisingly, given those varying outcomes, Slurry appealed the second verdict.