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SANTIAGO v. ORLANDO PARK MOTOR CARS

February 17, 2004.

MICHELE SANTIAGO, Plaintiff,
v.
ORLAND PARK MOTOR CARS, INC., a/k/a MERCEDES BENZ, Defendant



The opinion of the court was delivered by: SIDNEY SCHENKIER, Magistrate Judge

MEMORANDUM OPINION AND ORDER

On November 19, 2003, this Court granted summary judgment for the defendant, Orland Park Motor Cars, Inc. ("Orland Park"), and against the plaintiff, Michele Santiago, on her Title VII claim for hostile work environment. See Santiago v. Orland Park Motor Cars, Inc., WL 22765057 (N.D. Ill. Nov. 20, 2003). As the prevailing party in this lawsuit, Orland Park has filed a bill of costs seeking $2,989.47 (Def.'s Notice of Filing, at 2). Michele Santiago has objected to the bill of costs (Pl.'s Obj., at 1). For the reasons that follow, the Court grants in part and denies in part the bill of costs, and awards $2,008.80 in costs to Orland Park.

I.

  Pursuant to Federal Rule of Civil Procedure 54(d)(1), "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs . . .," Consistent with this directive, "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. 1994) (emphasis added) (citations omitted). This "presumption [favoring the award of costs] is difficult to overcome, and the district court's discretion is narrowly confined — the court must award costs Page 2 unless it states good reasons for denying them." Weeks v. Samsung Heavy Indust. Co. Ltd., 126 F.3d 926, 945 (7th Cir. 1997). Generally, only two reasons justify denying costs: (1) misconduct by the prevailing party worthy of penalty, or (2) the losing party's inability to pay. Id.

  Plaintiff here does not assert any misconduct by Orland park, but does claim she "is financially unable to pay costs" (Pl.'s Obj. at 1). To invoke the "inability to pay" exception, a party must demonstrate by admissible evidence not merely that payment would be a burden, but that she is indigent. Reed v. Int'l. Union, 945 F.2d 198, 204 (7th Cir. 1991); Jansen v. Packaging Corporation of American, 1997 U.S. Dist. LEXIS 14106, at *3 (N.D. Ill. September 11, 1997). A party is indigent if she is "incapable of paying the court-imposed costs at this time or in the future." McGill, 18 F.3d at 459 (citations omitted).

  To support her claim of indigency, the plaintiff has submitted a declaration stating that (1) she is currently unemployed; (2) she and her husband must support their three children on his monthly net salary of $1,400-$1,500; and (3) her family recently lost its home to foreclosure (Pl.'s Obj., Ex. A). Additionally, plaintiff submitted a copy of the U.S. Department of Health and Human Services 2003 Poverty Guidelines, which show the Santiago income level places them barely above the poverty line (Id.). On this basis, the plaintiff states that she is "presently unable to afford payment of the costs defendant seeks" (Id.). However, the declaration is insufficient to demonstrate indigency. "It is not just a matter of [Ms. Santiago] being unable to presently pay the costs; it must also be shown that [she] is not likely to pay the costs in the future." Jansen, 1997 U.S. Dist. LEXIS 14106, at *3. The plaintiff is currently unemployed, but she has been employed in the past, and she has failed to show that she will be unable to secure employment in the future. Accordingly, the plaintiff has failed to show that she is indigent, and the defendant is entitled to an award of costs. Page 3

  II.

  Thus, we turn to the question of what costs are recoverable. Under 28 U.S.C. § 1920, certain enumerated costs may be covered by a prevailing party: (1) fees of the clerk and marshal; (2) fees of the court reporter for all and any part of the stenographic transcript necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and copies of papers necessarily obtained for use in the case; (5) docket fees under 28 U.S.C. 1923; (6) compensation of Court-appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under 28 U.S.C. § 1828. Provided that they fall within one of these statutory categories, costs are recoverable if they are both reasonable and necessary to the litigation. Cefalu v. Village of Elk Grove, 211 F.3d 416, 427 (7th Cir. 2000). Costs that are incurred merely for the convenience of the prevailing party may not be recovered. Barber v. Ruth, 7 F.3d 636, 645 (7th Cir. 1993).

  A. Deposition Transcripts.

  Orland Park seeks $2,326.85 in costs for obtaining four deposition transcripts (Def.'s Notice of Filing, Exs. A, B, C; Def.'s Resp. to Pl.'s Obj. to Bill of Costs, at 5-6). Recovery of costs for deposition transcripts is authorized by Section 1920(2), which permits an award of costs for transcripts "necessarily obtained for use in the case." The "transcripts need not be absolutely indispensable in order to provide the basis of an award of costs; it is enough that they are `reasonably necessary." Barber, 7 F.3d at 645 (quoting State of Illinois v. Sangamo Constr. Co., 657 F.2d 855, 867 (7th Cir. 1981)). Further, "the determination of necessity must be made in light of the facts known at the time of the deposition, without regard to intervening developments that later render the deposition unneeded. . . ." Hudson v. Nabisco Brands, Inc., 758 F.2d 1237, 1243 (7th Cir. 1985) Page 4 (overruled on grounds not relevant here by Provident Bank v. Manor Steel Corp., 882 F.2d 258 (7th Cir. 1989)); see also Movitz v. First Nat'l Bank of Chicago, 982 F. Supp. 571 (N.D. Ill. 1997). Plaintiff claims that defendant has failed to demonstrate that these deposition transcripts costs were "reasonably necessary" and that the costs claimed by the defendant are excessive (Pl.'s Obj., at 4-6). We therefore turn to the question of whether each of the deposition transcripts in question and their associated costs were "reasonably necessary."

  1. Plaintiff's Deposition.

  The Court finds that the deposition transcript of Ms. Santiago was reasonably necessary for Orland Park's pre-trial preparation, because a plaintiff's testimony regarding the basis for her claims is typically necessary to the defense of the case. Accordingly, Orland Park may recover the costs associated with Ms. Santiago's deposition transcript. Orland Park seeks $1, 213.75 for Ms. Santiago's deposition; $963.75 for the transcript (257 pages at $3.75 per page); and $250.00 for the court reporter's appearance fee for attending the deposition (Def. Notice of Filing Ex. A).

  First, we address the amount Orland Park seeks for the deposition transcript itself. Taxable transcript costs "shall not exceed the regular copy rate as established by the Judicial Conference of the United States and in effect at the time of the transcript or deposition was filed unless some other rate was previously provided for by order of the court." LR 54.1(b), LOCAL RULES FOR THE UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF ILLINOIS. The "Judicial Conference has established $3.30 as the rate per page for an original transcript." Weiland v. Linear Construction, Ltd., 00 C 6172, 2004 U.S. Dist. LEXIS 356, at *4 (N.D. Ill. Jan 8, 2004). Thus, Orland Park may recover transcript costs only at a rate of $3.30 per page, reducing the taxable amount for Ms. Santiago's transcript to $848.10 (257 × $3.30). Page 5

  Second, we address the $250.00 court reporter attendance fee that Orland Park seeks. The Seventh Circuit has upheld the discretion of trial judges to award court reporter deposition appearance fees as taxable costs. Held v. Held, 137 F.3d 998, 1002 (7th Cir. 1998). However, "in this case defendant's exhibit[] do[es] not indicate the number of hours spent by the court reporter of the hourly rate charged." Alexander v. CIT Technology Financing Services, Inc., 222 F. Supp.2d 1087, 1090 (ND. Ill. 2002). The invoice simply states "APPEARANCE FEE" and "$250.00." (Def. Notice of Filing, Ex. A). "Therefore, the court cannot evaluate whether the ...


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