United States District Court, N.D. Illinois
February 17, 2004.
MICHELE SANTIAGO, Plaintiff,
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
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
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.
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)
(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).
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 appearance fees charged by the court reporter were reasonable."
Alexander, 222 F. Supp.2d at 1090. Accordingly, Orland Park may not
recover the court reporter appearance fee.
For the foregoing reasons. Orland park may recover $848.10 in costs
associated with the deposition of Ms. Santiago.
2. Additional Witness Depositions.
The depositions of Mary MacDonald, James Subka and David Nocera were
all taken upon the plaintiff's notice (Def. Resp. to Pl. Obj. to Bill of
Costs, at 6 and at Ex. D). Accordingly, Orland Park's costs associated
with these deposition transcripts were reasonably necessary for its
pre-trial preparation. The invoices submitted demonstrate the Orland Park
was charged for 137 pages for the MacDonald deposition (137 × $3.00 =
$411.00), 181 pages for the Subka deposition (181 × $2.40 = $434.40), and
111 page for the Nocera deposition (111 × $2.40 = $266.40) (Def. Notice
of Filing, Exs. B and C). Each of these amounts sought per page is less
than $3.30 per page, and Orland Park thus may recover these costs.
Additionally, with regard to Ms. MacDonald's deposition, the parties
agree that the cost for reproducing 13 pages of exhibits associated with
the deposition should be
charged at a rate of $0.10 per page for a total of $1.30. (Pl's Obj., at
6; Def. Resp, to Pl. Obj. to Bill of Costs, at 5).
Accordingly, for the foregoing reasons Orland Park may recover
$1,113.10 for the costs associated with deposition transcript costs
associated with Ms. MacDonald, Mr. Subka, and Mr. Nocera.
B. Employment Records Obtained Through Record Copy
Orland Park seeks $376.15 for service of subpoenas and for obtaining
plaintiff's employment records from Record Copy Services ("RCS") (Def.
Notice of Filing, Exs. E-G). Plaintiff argues that she is not liable for
these costs for two reasons: (1) the "defendant has not made a showing
that such records were `reasonable and necessary'" and (2) the "defendant
has failed in its burden to `provide sufficient documentation'" (Pl.'s
Obj., at 7).
First, we find that it was reasonable and necessary for Orland Park's
defense for it to take steps to ensure it had complete records of Ms.
Santiago's employment history. Second, a court may deny the recovery of
subpoena costs where the requesting party fails to provide sufficient
documentation to permit the determination of precisely how the costs were
incurred. XCO Int'1 Inc. v. Pacific Scientific Co., 01 C 6851, 2003 U.S.
Dist. LEXIS 7286, at *9 (N.D. Ill. Apr. 29, 2003) (denying subpoena costs
where reasonableness of expenses could not be determined because
submitted invoices did not reveal precisely how costs were calculated),
In the Seventh Circuit, subpoena costs are limited to the rates that
would be charged by the Marshal's Service. Collins v. Gorman, 96 F.3d 1057,
1070 (7th Cir. 1996). The Marshal's rate is currently $40.00 per hour for
the first two hours and $20.00 for every hour thereafter, plus $0.31 per
mile. XCO Int'l., 2003 U.S. Dist. LEXIS 7286, at *8.
In this case, Orland park provided merely a list of invoices, along
with the entity subpoenaed. There is no breakdown of how the costs were
allotted. Without this information the Court cannot determine whether or
not the subpoena costs were in excess of those charged by the Marshal's
Service, and ultimately, whether they were reasonable. And, there is no
evidence of the number of pages copied, or the charge per page. See
Krislov v. Rednour, 97 F. Supp. 862, 871 (N.D. Ill. 2000) ("To collect
for copying expenses, parties must typically provide the number of pages
copied and the price per page"). Therefore, we find that Orland Park may
not recover the costs for these services.
C. Photocopying Expenses.
Orland Park seeks $143.92 for the copying and binding of the summary
judgment papers, $47.60 for photocopying the plaintiff's EEOC file, and
$46.50 for eleven documents Orland Park claims were necessary for use in
the case (Def. Notice of Filing, Exs. D, H, and I). "A party may recover
costs of copies provided to the Court and opposing counsel; it cannot
recover for its own use." Weiland, 2004 U.S. Dis. LEXIS 356, at *5. Copy
rates between $0.10 and $0.20 per page have been found to be reasonable.
1. Copying and Binding of Summary Judgment
Orland Park's bill for $143.92 for the copying and binding of the
summary judgment papers "fail[s] to separately delineate the charges for
the separate binding/copy invoice, nor [does it] give any proof
explaining whether these charges were necessarily incurred." Weiland,
2004 U.S. Dist. LEXIS 356, at *6. The invoice fails to state how much was
charged per page of the 146 documents, how much was charged for the tab
insertion, how much was charged for hourly hand collating, and
how much was charged for the binding. Therefore, Orland Park may
not recover the $143.92 it seeks for the copying and binding of the
summary judgment papers.
2. Copying of Plaintiff's EEOC.
Orland Park seeks $47.60 for the costs of photocopy the plaintiff's
EEOC file. The plaintiff objects on three grounds: (1) this cost is "not
contemplated under statute;" (2) the defendant has failed to make a
showing that "such records were `reasonable and necessary;'" and (3) the
charges are excessive at $0.20 per page.
First, 28 U.S.C. § 1920(4) provides for the "[f]ees for exemplification
and copies of papers necessarily obtained for use in the case."
Accordingly, the photocopying of records is contemplated under statute.
Second, again, due to the nature of the plaintiff's claim, we find that
it was reasonable and necessary to Orland Park's defense for it to take
steps to ensure it had complete records of Ms. Santiago's EEOC file.
Third, copy rates of between $0.10 and $0.20 per page have been found to
be reasonable. Weiland, 2004 U.S. Dist. LEXIS 356, at *5. In this case,
Orland Park has submitted an invoice demonstrating that it was charged
$0.20 per page for 238 pages. Therefore, Orland Park shall be awarded
$47.60 in costs (238 × $0.20).
3. Other Copying Costs.
Orland Park seeks $46.50 for costs associated with copying the
following documents: Notice of Addition of Counsel, Answer to Complaint,
Motion for Protective Order, Interrogatory Answers, Document Production,
Motion for Leave to File Summary Judgment Motion Rule 56 Statement of
Facts, Memorandum of Law in Support of Summary Judgment, Response to
Plaintiff's Rule 56 Statement of Facts, Summary Judgment Reply Brief.
With the exception of interrogatory answers and document production
request all of the documents were filed with the Court (one copy to the
clerk of the district court, one copy for Chambers, and one copy for the
plaintiff). Although an award of costs for "copies of papers necessarily
obtained for use in the case" falls within the discretion of the Court
(i.e., the statute says "may be recovered"), in this case the Court will
deny to award the $46.50 in copy costs given the plaintiff's alleged
For the foregoing reasons, Orland Park's bill of costs is GRANTED in
part and DENIED in part. The Court awards costs in the amount of
$2,008.80, consisting of $1,961.20 in transcript costs, and $47.60 in