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SULLIVAN v. CHESHIER

January 8, 1998

JOHN W. SULLIVAN and SUSAN R. SULLIVAN, Plaintiffs,
v.
WILLIAM LESLEY CHESHIER, Defendant.



The opinion of the court was delivered by: BUCKLO

 On April 2, 1997, after a jury trial, judgment was entered in favor of the defendant, William Cheshier. Dr. Cheshier filed his original Bill of Costs on April 30, 1997, within the required 30-day period. On November 13, 1997, with permission of the court, Dr. Cheshier filed an Amended Bill of Costs seeking litigation costs of $ 29,430.49. Plaintiffs, John Sullivan and Susan Sullivan, object to the costs and ask the court to deny all costs or in the alternative, to reduce the costs. For the following reasons, I award Dr. Cheshier $ 7,967.41.

 "Costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs . . . ." Fed. R. Civ. P. 54(d)(1). In awarding costs, "the court must determine that the expenses are allowable [under statutory authority] . . . and that the amounts are reasonable and necessary." Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 642 (7th Cir. 1991).

 Denial of All Costs

 A. Late Filing

 A bill of costs must be filed within thirty days of the entry of judgment or costs will be deemed waived. N.D. Ill. Local R. 45(A). "Before any bill of costs is taxed, the party . . . shall attach thereto an affidavit" stating that the costs are correct and were necessarily incurred in the case. 28 U.S.C. § 1924.

 Plaintiffs argue that the court should deny all costs because Dr. Cheshier did not file a bill of costs and affidavit within the required 30-day period. "While it may be preferable for a party to file supporting documentation and authority along with [the bill of costs], 28 U.S.C. § 1924 does not appear to require it." Piraino v. International Orientation Resource, 1997 U.S. Dist. LEXIS 5996, 1997 WL 222948, *2 (N.D. Ill. 1997) (Coar, J.). An affidavit is only required under Section 1924 "before any bill of costs is taxed." Id. Dr. Cheshier filed his original Bill of Costs within the 30-day period. He subsequently received permission to file an Amended Bill of Costs and cured any defect by attaching an affidavit. Thus Dr. Cheshier's bill of costs was timely.

 B. Misconduct

 "The prevailing party is prima facie entitled to costs and it is incumbent on the losing party to overcome the presumption." McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir.) (quoting Popeil Brothers, Inc. v. Schick Electric, Inc., 516 F.2d 772, 775 (7th Cir. 1975)), cert. denied, 513 U.S. 889, 130 L. Ed. 2d 157, 115 S. Ct. 233 (1994). The losing party must affirmatively show that the prevailing party is not entitled to costs. Congregation of the Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219, 222 (7th Cir. 1988). Generally, only the non-prevailing party's inability to pay or misconduct *fn1" by the prevailing party worthy of a penalty justify denying costs. Id.

 Plaintiffs claim that costs should be denied for misconduct because Dr. Cheshier exercised bad faith in preparing his original and Amended Bill of Costs. Plaintiffs do not cite any law to support this position. Courts in this district, however, have not denied costs because of any alleged misconduct in the preparation of a bill of costs. See, e.g., Somat Corp. v. Somat Corp., 1993 U.S. Dist. LEXIS 3246, 1993 WL 75155, *6 (N.D. Ill. 1993) (Plunkett, J.). Therefore, this argument fails.

 Alternatively, plaintiffs argue that Dr. Cheshier's numerous motions to extend discovery, to extend the date for the pretrial order, and to continue the trial date constitute misconduct. They claim that the motions evince a deliberate effort to delay and increase the expense of litigation. Although the motions for extensions appear numerous, they do not rise to the level of misconduct.

 Reduction of Costs

 Dr. Cheshier seeks $ 8,297.54 in deposition transcript charges and $ 21,132.95 in costs related to expert witnesses. Dr. Cheshier is not entitled to all the costs that he ...


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