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NATIONAL DIAMOND SYNDICATE, INC. v. FLANDERS DIAMOND USA

July 7, 2004.

NATIONAL DIAMOND SYNDICATE, INC., Plaintiff and Counterclaim Defendant,
v.
FLANDERS DIAMOND USA, INC., and KUWAYAMA EUROPE, N.V., Defendants, Counterclaim Plaintiffs, and Third-Party Plaintiffs, v. LEWY FRIEDRICH, N.V., Counterclaim Defendant.



The opinion of the court was delivered by: AMY J. ST. EVE, District Judge

MEMORANDUM OPINION AND ORDER

On June 25, 2003, the Court entered judgment on a jury verdict in favor of Plaintiff National Diamond Syndicate, Inc. ("National Diamond"). (R. 191-1, Minute Order.) National Diamond filed a Bill of Costs in which it seeks $60,297.71.*fn1 Defendants object, and ask the Court to deny the entire Bill of Costs or, in the alternative, to reduce the Bill of Costs to $42,134.26. Defendants further ask the Court to stay ruling on the Bill of Costs pending appeal.

LEGAL STANDARDS

  Federal Rule of Civil Procedure 54(d)(1) provides that "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). Rule 54(d) creates a strong presumption that the prevailing party will recover costs. Majeske v. City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000); Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 945 (7th Cir. 1997). This presumption is difficult to overcome, and the Court's discretion is narrowly confined — it must award costs unless it is confronted with good reasons for denying them. Congregation of the Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219, 222 (7th Cir. 1988). Taxing costs involves two inquires: whether the cost imposed is recoverable, and if so, whether the amount assessed is reasonable. Majeske, 218 F.3d at 824. It is within the Court's discretion whether to award specific costs under 28 U.S.C. § 1920. Barber v. Ruth, 7 F.3d 636, 644 (7th Cir. 1993).

  ANALYSIS

  I. Costs Are Appropriate

  The burden of proof is not on the prevailing party to establish that it is entitled to costs, but on the losing party to establish reasons to deny costs. Movitz v. First Nat'l Bank of Chicago, 982 F. Supp. 571, 573 (N.D. Ill. 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. Weeks, 126 F.3d at 945.

  Defendants provide no such justification. Defendants have provided no evidence of misconduct by National Diamond, and Defendants have not argued, much less demonstrated, an inability to pay. Defendants simply argue that costs are inappropriate because "[t]his case involved difficult legal issues and was litigated in good faith by the parties." (R. 214 at 2.) Good faith litigation is not enough to warrant the denial of costs, and this case did not involve such novel legal issues to justify the denial of costs. Cf. Allstate Ins. Co. v. Michigan Carpenters' Council Health & Welfare Fund, 760 F. Supp. 665, 670 (W.D. Mich. 1991) (denying an award of costs where the legal issue in dispute was "close and difficult," in view of the fact that relevant precedent had recently been overturned by the Supreme Court). Thus, National Diamond is entitled to an award of recoverable costs.

  II. Specific Costs Recoverable Under The Statute

  A. Undisputed Costs

  Defendants do not dispute the following costs: fees of the clerk ($150.00); fees for service of summons and subpoenas ($100.00); and docket fees ($20.00). National Diamond has provided evidence substantiating these costs. Accordingly, National Diamond is entitled to recover $270.00.

  B. Deposition Transcript Costs

  Section 1920(2) allows taxation of deposition transcripts where the costs are "necessarily obtained for use in the case." 28 U.S.C. § 1920(2). National Diamond seeks $29,020.17 for deposition transcript costs. Defendants argue that these costs are not authorized by the statute.*fn2

  With respect to deponents Friedrich, Zimmerman, and Carmona, Defendants argue that National Diamond is not entitled to costs because "Plaintiffs had control over these witnesses." Defendants cite no authority supporting this proposition. National Diamond contends that these depositions were necessary, and notes that Defendants noticed and took each of these depositions and listed each of these deponents as witnesses on their Final Witness List for trial. These depositions were "necessarily obtained for use in the case," and these costs are recoverable. Defendants argue that National Diamond is not entitled to costs with respect to deponents Skuza and Hewson because "their deposition testimony was not presented during trial." (R. 214-1 at 4.) Similarly, Defendants argue that Gerstman's deposition transcript was unnecessary because National Diamond tried — unsuccessfully — to impeach Gerstman ...


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