The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff James Habdas filed this action against the City of Chicago
and Police Officer Tom Hoban for battery, false arrest and imprisonment,
intentional infliction of emotional distress, and violation of his
constitutional rights. On October 23, 2003, after a one-day trial, the
jury returned a verdict for the defendants on all counts. Defendants now
bring motions to approve their bill of costs and to recover their
attorneys' fees. The motion to approve the bill of costs is granted,
while the motion to recover attorneys' fees is denied.
Federal Rule of Civil Procedure 54(d)(1) provides: "[C]osts other than
attorneys' fees shall be allowed as of course to the prevailing party
unless the court otherwise directs. . . ." The costs a prevailing party
may recover are (1) fees of the clerk and marshal; (2) fees of the court
reporter for 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; and (6) compensation of
court-appointed experts and interpreters. 28 U.S.C. § 1920. Under Rule
54(d), the prevailing party enjoys the presumption that costs will be
awarded. See M.T. Bonk Co. v.
Milton Bradley Co., 945 F.2d 1404, 1409 (7th Cir. 1991); Cichon v. Exelon
Generation Co., 2003 WL 22757760 at *1 (N.D.Ill.2003). Unless the court
states a good reason to deny costs, it must award them. Weeks v. Samsung
Heavy Industries Co., Ltd., 126 F.3d 926, 945 (7th Cir. 1997). However,
the court's Inquiry regarding a reported cost is twofold. First, we must
determine whether the cost is recoverable and then we must determine
whether the sum is reasonable. Ochana v. Flores, 206 F. Supp.2d 941, 944
Defendants seek reimbursement for trial exhibits, deposition costs, a
certified copy of a criminal file, and copies of documents provided to
plaintiff during discovery. Along with their motion for recovery of
costs, defendants have attached an affidavit from their attorney stating
that defendants actually incurred all of the reported costs and that
these costs were necessary expenditures. Despite plaintiff's arguments
otherwise, we find no good reason to deny or reduce reimbursement to
defendants for their costs.
Defendants spent $1, 249.54 on large trial exhibits and $44.43 on small
trial exhibits. These costs may be recovered as "fees for exemplification
and copies of papers necessarily obtained for use in the case." See 28
U.S.C. § 1920. Plaintiff argues that the costs of the blowups should not
be reimbursed because small exhibits would have sufficed and the
enlargements were duplicative of oral testimony. However, "[e]nlargement
costs are reimbursable if the exhibits were `necessary to the
understanding of an issue and a material aid to the jury. . . .'"
Robinson v. Burlington Northern R. Co., 963 F. Supp. 691 (N.D.Ill.
1997), quoting Endress Hauser, Inc. v. Hawk Measurement Sys. Pty.
Ltd., 922 F. Supp. 158, 162 (S.D.Ind. 1996). The photographic
enlargements of the scene of plaintiff's arrest and of his mug shot were
material aids to the Jury's understanding of the circumstances
surrounding the arrest and plaintiff's
emotional response to it. Plaintiff also contests the costs for the small
trial exhibits, arguing that defendants' attorney created them for his
own convenience. However, copies of trial exhibits are not exclusively
for the convenience of the attorney, for they are necessary in the event
an exhibit is published to the jurors. The costs for trial exhibits are
both recoverable and reasonable.
Defendants' cost for deposition transcript of plaintiff was $482455.
This sum includes $114.25 in court reporter's fees for April 21, 2003,
the date on which plaintiff did not appear for a scheduled deposition.
Plaintiff argues that be is not responsible for this cost because his
attorney, John Xydakis, notified defendants in advance that he would not
be able to attend. Indeed, Xyadkis sent Alan Farkas, one of defendants'
attorneys, a letter dated April 8, 2003, stating that Xydakis would not
be able to make the scheduled deposition and requested that Farkas send
him possible dates on which both Habdas and Hoban could be deposed. In
response, Farkas wrote Xydakis that if Habdas could not make the
deposition he needed to either propose other dates or get a protective
order. Xydakis did neither. Apparently the parties did not communicate
further before April 21, 2003, leaving defendants to believe that Habdas
would attend his deposition. Thus, this portion of the deposition fees is
a legitimate expense for which defendants' must be reimbursed.
Plaintiff further argues that the deposition fee is not recoverable
because the deposition was taken only for investigative purposes, the
total includes more than just transcription costs, and the fee is
unreasonable. These arguments merit little attention. Deposing the
plaintiff, who was one of two key witnesses in this case, was certainly
reasonable and necessary. Defendants' recoverable deposition costs are
not limited to transcription fees; they may include
a fee for the court reporter's attendance. Finchum v. Ford Motor
Company, 57 F.3d 526, 534 (7th Cir. 1995). To support his contention that
the deposition cost 1s unreasonable, plaintiff argues that defendants
could have hired a court reporter for considerably less than $368 for
plaintiff's two-hour deposition, and that the transcription fee should not
have been so costly. Plaintiff does not appear to recognize that $368.30
represents defendants' total costs for both the creation of the
transcript and the court reporter's attendance time. This sum is not
Defendants are also entitled to reimbursement for the certified copy of
plaintiff's criminal file. Plaintiff contends that since he did not
pursue a malicious prosecution claim at trial, the file was unnecessary.
However, given plaintiff's complaint, which alleged a claim for malicious
prosecution, the certified copy was reasonably necessary in preparation
Finally, plaintiff contends that defendants are not entitled to $97.04
for copies of documents related to discovery. Though plaintiff complains
that defendants have not provided sufficient detail regarding the number
and nature of the documents copied, he claims that the rate is ten times
the reasonable rate often cents per page. While it is true that
defendants have not accounted for every document copied, their attorney's
sworn affidavit states that this sum reflects the actual amount spent to
make copies of discoverable materials for the plaintiff. This suffices to
determine that the cost is reasonable and recoverable.
Defendants also bring a motion to recover attorneys' fees pursuant to
42 U.S.C. § 1988(b) and 28 U.S.C. § 1927. Section 1988(b) provides that
the court, in its discretion, may allow the prevailing party In an action
to enforce § 1983 a reasonable attorney's fee as part of the costs. Even
though both prevailing plaintiff's and prevailing defendants may collect
attorney's fees, different standards apply, depending on which party
prevails. Unity Ventures v. County of Lake. 894 F.2d 250, 253 (T" Cir.
1990). While a plaintiff receives attorney's fees if he succeeds in
achieving a benefit on any significant issue in the suit, a defendant may
only receive attorney's fees if he can demonstrate that "the plaintiff
brought [the] action in subjective bad faith or that `the plaintiff's
action was frivolous, unreasonable, or without foundation, even though
not brought in subjective bad faith. . . ." Id. quoting Christianburg
Garment Co. v. EEOC. 434 U.S. 412, 421 (1978). The Supreme Court has
warned district courts to avoid applying post hoc reasoning when weighing
whether an action was frivolous, unreasonable, or without foundation,
noting that reasonable grounds for a suit may exist even where the law or
facts are "questionable or unfavorable." Christianburg, 434 U.S. at
421-422. The strict standard imposed on defendants who move for
attorney's fees ensures that plaintiff's seeking to vindicate their civil
rights in court will not be dissuaded for fear of being stuck with the
defendant's legal bill. Vandenplas v. City of Muskego, 797 F.2d 425, 429
(7th Cir. 1986).
Defendants contend that plaintiff's action had no basis in law or fact,
characterizing his claims as "laughable." We do not agree that this
action justifies an award of attorney's fees. Defendants argue that it
would have been unimaginable for a jury to have decided in plaintiff's
favor, given his testimony. While it is true that the jury delivered a
verdict for defendants on all counts, and took a relatively short time to
do so, this alone does not render plaintiff's action baseless. The crux
of plaintiff's argument was that Officer Hoban ordered him to move from
an unmarked public area without further explanation of where to go or why
he needed to move. Plaintiff maintained that after he Inquired where he
needed to go, he was verbally abused and arrested. It is apparent from
the jury's decision that they did not accept
plaintiff's interpretation of the events at O'Hare on October 6, 2001.
However, that does not give this court cause to find that the case was
lacking in any merit
Defendants further argue that plaintiff's claims for intentional
infliction of emotional distress and battery were frivolous because
plaintiff could not show damages for either claim. Indeed, the court
recognizes that plaintiff did not present a compelling case for severe
emotional distress or physical injury. Nonetheless, as plaintiff points
out, he did not need to prove significant physical injury to prevail on
his claims for battery or violation of § 1983, nor did he need to
seek medical attention or miss work to prevail on his intentional
infliction of emotional distress claim. Evidence of more significant
damages may have provided plaintiff with a stronger case, however it was
not a prerequisite for his claims.
Defendants do not limit their search for attorney's fees to only the
plaintiff, they also seek reimbursement from plaintiff's attorney under
28 U.S.C. § 1927. This statute states that "[a]ny attorney . . . who so
multiplies the proceeding in any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess costs, expenses,
and attorneys' fees reasonably incurred because of such conduct."
28 U.S.C. § 1927. The Seventh Circuit has stated that this statute must
be strictly construed and requires a finding that the attorney
intentionally filed or prosecuted a claim that lacked a plausible legal
or factual basis. Indianapolis Colts v. Mayor and City Council of
Baltimore. 775 F.2d 177, 182 (7th Cir. 1985), citing Knorr Brake Co. v.
Harbil, Inc., 738 F.2d 223, 227 (7th Cir. 1984). In Indianapolis Colts.
since the court had not found that the plaintiff's claim was frivolous,
it could not find that an award of attorney's fees under § 1927 was
warranted. Likewise, since we do not find that plaintiff's claims were
baseless, we do not find that plaintiff's attorney "unreasonably and
vexatiously" pursued claims merely to multiply the burden of litigation
in this case. Though Mr. Xydakis' does use words such as "sanctionable"
(in one case calling for sanctions against the defendants for making the
true statement that a ...