United States District Court, N.D. Illinois, Eastern Division
July 7, 2004.
NATIONAL DIAMOND SYNDICATE, INC., Plaintiff and Counterclaim Defendant,
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.
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).
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 with his deposition during
trial. The introduction of a deposition at trial, however, is not
a prerequisite for finding that it was necessary to take the
deposition. M.T. Bonk, 945 F.2d at 1410. Therefore these costs
Finally, with respect to videotaping fees for deponent
d'Haene's deposition, Defendants argue that these costs are
unnecessary because Defendants represented to National Diamond
that d'Haene would be present at trial (and in fact he was
present at trial). National Diamond contends that at the time of
the deposition, it reasonably believe that videotaping was
necessary because d'Haene, who resides outside of the United
States, was beyond the Court's subpoena power. A party can
properly tax costs for a videotaped deposition provided that it
is reasonably necessary. Vardon Golf, Inc. v. Karsten Mfg.
Corp., No. 99 C 2785, 2003 WL 1720066, at *9 (N.D. Ill. Mar. 31,
2003). The question of whether videotaping is necessary must be
made in light of the facts known at the time of the deposition.
Barber, 7 F.3d at 645. The Court agrees that these costs are
Accordingly, National Diamond is entitled to $29,020.17 for
deposition transcript costs.
C. Copying Costs
Section 1920(4) authorizes the Court to tax as costs "[f]ees
for exemplification and copies of papers necessarily obtained for
use in the case." 28 U.S.C. § 1920(4). National Diamond seeks
$10,217.83 in copying costs. Defendants object to these costs on
the grounds that they are excessive and unsupported by documentation.
Defendants dispute National Diamond's costs for copying
documents listed as "preparation for motion for summary judgment"
because National Diamond did not prevail on its summary judgment
motion. Costs incurred in the preparation, copying, and collating
of exhibits to a motion for summary judgment are generally
properly taxable. Haraco, Inc. v. American Nat'l Bank and Trust
Co. of Chicago, 38 F.3d 1429, 1441 (7th Cir. 1994) (holding
that costs for copying and collating of exhibits to summary
judgment motion fall within language of Section 1920(4)); see
also Sphere Drake Ins. PLC v. Trisko, 66 F. Supp.2d 1088, 1094
(D. Minn. 1999) (awarding costs for exhibits of unsuccessful
summary judgment motion). Therefore, these costs are recoverable.
Defendants dispute the majority of National Diamond's copying
costs relating to the preparation of trial exhibits because
National Diamond used only approximately 25 percent of the
exhibits listed on its Final Exhibit List. Defendants ask the
Court to offset the requested costs by 75 percent. Documents need
not be introduced at trial, however, for the cost of copying them
to be recoverable under Section 1920(4). M.T. Bonk, 945 F.2d at
1410, State of Illinois v. Sangamo Constr. Co., 657 F.2d 855,
867 (7th Cir. 1981). Accordingly, these costs are
National Diamond is not entitled to recover the entire amount
it seeks, however, because it has not provided the Court with
sufficient documentation to enable the Court to determine whether
all of the expenses were necessary. Although National Diamond has
provided the Court with the date, description, and total number
of each outlay, it has not itemized page cost, page count, actual per copy price, or the total number of sets of
copies per job.*fn3 See Northbrook Excess and Surplus Ins.
Co. v. Procter & Gamble Co., 924 F.2d 633, 643 (7th Cir.
1990). Considering the duration and paper-intensive nature of
this patent case, however, the Court exercises its discretion and
awards National Diamond 75 percent of its requested copying costs
that are related to its summary judgment motion and trial
exhibits, for a total of $7603.37.*fn4
Defendants dispute the video duplication cost, arguing that it
was not obtained "for use in the case." National Diamond explains
that the $80.00 charge represents the cost of obtaining copies of
videotapes of prior television interviews involving National
Diamond's technical expert and that Defendants demanded a copy of
the videotapes. National Diamond contends that "[a]s Plaintiffs
had no way of knowing whether Defendants would attempt to use
these videotapes at trial, Plaintiffs' copies of these tapes were
entirely necessary to enable Plaintiffs to prepare for trial."
(R. 215-1 at 9.) It was reasonable for National Diamond to
duplicate the videotapes before turning them over to Defendants
because it was possible that Defendants may have used the
videotapes to prepare their case for trial. This $80.00 charge is
D. Interpreter's Fees
Section 1920(6) allows for "compensation of interpreters, . . .
and costs of special interpretation services."
28 U.S.C. § 1920(6). National Diamond seeks $4,760.00 in interpreter and translation fees. Defendants object to $1,390.00 that
National Diamond seeks to recover for two days of interpreter
fees on the ground that it was necessary for the interpreter to
attend trial only on the day that Geerts actually
testified.*fn5 National Diamond contends that the
interpreter attended trial for two days due to the uncertainty of
the timing of Geerts's testimony in order to ensure that the
interpreter was available in court to translate for the jury once
Defendants completed their cross-examination of the previous
witness. Because the interpreter provided necessary services at
trial, these costs are recoverable.
E. Witness Fees
Section 1920(3) allows for witness fees, which are specified in
28 U.S.C. § 1821(b). 28 U.S.C. § 1920(3). Section 1821(b) allows
for "an attendance fee of $40 per day for each day's attendance"
at trial or deposition, in addition to "attendance fee[s] for the
time necessarily occupied in going to and returning from the
place of attendance and the beginning and end of such attendance
or at any time during such attendance." 28 U.S.C. § 1821(b).
Section 1821(c)(1) allows for actual travel expenses via common
carrier. 28 U.S.C. § 1821(c)(1). Section 1821(d)(1) allows for a
subsistence allowance to be paid to a witness when an overnight
stay is required at the place of attendance.
28 U.S.C. § 1821(d)(1). Sections 1821(d)(2) and (3) limit the maximum per
diem allowance to that prescribed by the Administrator of General
Services, pursuant to 5 U.S.C. § 5702(a). In Chicago, that rate
is $205 per day.
National Diamond claims $16,029.71 for travel and lodging
expenses incurred by Geerts, Friedrich, Burnett, and Carmona.
Defendants object that these fees are not authorized by the
statute. 1. Geerts
Geerts testified for one day at trial. National Diamond seeks
attendance fees and a subsistence allowance for three days, in
addition to airfare. Defendants contend that National Diamond is
entitled to recover attendance fees for one day and a subsistence
allowance for two days.*fn6 Under the statute, National
Diamond is entitled to recover attendance fees and a subsistence
allowance for three days, in addition to airfare, for a total of
Friedrich testified for three days at his deposition and one
day at trial. National Diamond seeks attendance fees and a
subsistence allowance for six days, in addition to airfare.
Defendants argue that National Diamond is not entitled to recover
any costs for Friedrich because Friedrich is a party opponent.
As a general rule, parties may not normally collect their own
witness fees, and this prohibition has sometimes been held to
extend to real parties in interest. Barber, 7 F.3d at 646.
Where the party is a corporation, however, corporate officers may
be "witnesses" where they are not personally involved in the
litigation, even though they are employed by the named party. WH
Smith Hotel Servs., Inc. v. Wendy's Int'l, Inc., 25 F.3d 422,
429 (7th Cir. 1994). National Diamond argues that Friedrich
is not a named party and he is not a real party in interest
because he attended trial in order to testify as a fact witness,
not to manage the litigation or advise counsel. The Court agrees
that Friedrich is a witness and that witness fees are therefore
recoverable. Defendants do not otherwise dispute the amount of
costs associated with Friedrich. Accordingly, National Diamond is
entitled to $5,724.12. 3. Burnett
Burnett testified at his deposition for four days and attended
trial for fourteen days. National Diamond seeks attendance fees
and a subsistence allowance for eighteen days, in addition to
airfare.*fn7 Defendants contend that Burnett attended trial
for an excessive number of days, and that National Diamond is
entitled to recover attendance fees and a subsistence allowance
for nine days rather than eighteen. National Diamond argues that
Burnett's presence at trial was necessary because, as an expert
witness, Burnett needed to observe the testimony and demeanor of
Defendants' witnesses at trial so he could effectively rebut
their testimony. National Diamond further notes that recovery of
witness fees is not limited to the days the witness actually
testifies. The Court agrees. These costs are recoverable.
National Diamond is entitled to $6,866.59.
Carmona, another expert, testified at his deposition for two
days and attended trial for six days. National Diamond seeks
attendance fees and a subsistence allowance for eight days, in
addition to airfare.*fn8 Defendants argue that these fees
should be reduced by one day because two days of preparation is
excessive. National Diamond argues that Carmona's presence at
trial was necessary in order for him to observe the testimony and
demeanor of Defendants' witnesses at trial. The Court agrees.
These costs are recoverable. National Diamond is entitled to
Accordingly, National Diamond's Bill of Costs is granted in
part and denied in part. National Diamond is entitled to recover
$57,763.25 in costs.*fn9