The opinion of the court was delivered by: GEORGE LINDBERG, Senior District Judge
MEMORANDUM OPINION AND ORDER
Before the court are Zenith Electronics Corporation's
("Zenith") and WH-TV Broadcasting Corporation's ("WH-TV") motions
to review costs taxed in favor of General Instrument Corporation
("GI") and Motorola, Inc. ("Motorola"). For the reasons stated
below, WH-TV's motion to vacate the costs taxed against it is
granted in part and denied in part, and Zenith's motion is
In 1999 and 2000, Zenith sold digital television equipment to
WH-TV. On July 17, 2000, Zenith sold to GI the Zenith division
that was responsible for manufacturing the equipment. Under the
agreement governing the sale, GI agreed to indemnify Zenith from
all losses relating to certain assumed liabilities.
On June 11, 2001, Zenith brought this breach of contract action
against WH-TV, alleging that WH-TV failed to pay Zenith for the
equipment. WH-TV counterclaimed, alleging that the equipment was
defective and did not conform to the promises Zenith had made.
WH-TV later added GI and Motorola (GI's parent company) as
third-party defendants. Zenith filed a crossclaim for
indemnification against GI, in the event that Zenith was held
liable to WH-TV. On March 12, 2004, this court entered judgment against WH-TV
and in favor of GI and Motorola on WH-TV's Second Amended
Third-Party Complaint. The same day, the court entered judgment
against Zenith and in favor of GI on Zenith's cross-claim for
indemnification.*fn1 GI and Motorola filed a bill of costs,
requesting that the Clerk of Court tax costs in the amount of
$357,618.82 jointly and severally against WH-TV and Zenith.
Pursuant to Federal Rule of Civil Procedure 54(d)(1), the clerk
taxed these costs. WH-TV and Zenith each filed a timely motion
asking the court to review this action by the clerk.
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 a statute, federal rule of civil
procedure, or the court otherwise directs. Recoverable costs are
listed in 28 U.S.C. § 1920:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of
the stenographic transcript necessarily obtained for
use in the case;
(3) Fees and disbursements for printing and
(4) Fees for exemplification and copies of papers
necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts,
compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation
services under section 1828 of this title.
Courts may not award costs not authorized by statute. Barber v.
Ruth, 7 F.3d 636
, 644 (7th Cir. 1993); Northbrook Excess &
Surplus Ins. Co. v. Proctor & Gamble Co., 924 F.2d 633
(7th Cir. 1991). III. Zenith's Objections to GI's and Motorola's Bill of
The court first considers Zenith's argument that GI's and
Motorola's claim for costs against Zenith should be denied in its
entirety because GI and Motorola failed to segregate the costs
attributable to GI's defense of Zenith's indemnification claims.
GI and Motorola collectively seek to impose costs jointly and
severally against WH-TV and Zenith, without specifying which of
those costs GI incurred defending against Zenith's claims. Zenith
asserted claims only against GI in this litigation, and asserted
no claims against Motorola. Therefore, only GI was a prevailing
party with respect to Zenith's claims against it, and Motorola
cannot recover costs from Zenith, as it is attempting to do here.
Since GI and Motorola have failed to indicate which costs GI
incurred defending against Zenith's claims, the court will deny
their claim for costs against Zenith in its entirety.
Moreover, joint and several liability would be inappropriate
here, even if it were clear which costs were incurred by GI and
which by Motorola. GI and Motorola fail to differentiate between
which costs were incurred defending against Zenith's claims, and
which costs were incurred defending against WH-TV's claims. GI
and Motorola argue that this is appropriate because their costs
related to matters applicable to both Zenith's and WH-TV's
claims. GI and Motorola explain that since Zenith sought
indemnification from GI for WH-TV's claims against Zenith in this
action, and since WH-TV asserted claims against Zenith for the
same failings for which it sought compensation from GI and
Motorola, Zenith's claims against GI were essentially the same as
WH-TV's claims against GI and Motorola. Accordingly, argue GI and
Motorola, any documents relevant to their defense against WH-TV's
claims were also relevant to GI's defense against Zenith's
claims. Generally, liability for costs is joint and several when there
are multiple parties on the non-prevailing side. See White v.
Sundstrand Corp., 256 F.3d 580, 586-87 (7th Cir. 2001).
However, joint and several liability for costs is not appropriate
where the claims by the non-prevailing parties against the
prevailing party were different in kind. See In re Paoli R.R.
Yard PCB Litig., 221 F.3d 449, 471 (3d Cir. 2000).
Here, Zenith's indemnification claims raised the issue of which
of Zenith's obligations GI assumed under the agreement governing
the asset sale. By contrast, WH-TV's complaint against GI and
Motorola included promissory and equitable estoppel claims
relating to promises Motorola made to WH-TV and work that
Motorola performed after the asset sale. Accordingly, the defense
against Zenith's claims would not have required the same
discovery needed to defend against WH-TV's claims. In addition,
although the court cannot determine which costs GI and Motorola
would have incurred defending against WH-TV's claims, the court's
experience with this case leads the court to conclude that those
costs would have been greater than the costs GI incurred
defending against Zenith's indemnification claims.
The costs of defending against Zenith's claims should have been
segregated from the costs of defending against WH-TV's
claims.*fn2 Cf. Concord Boat Corp. v. Brunswick Corp.,
309 F.3d 494, 497 (8th Cir. 2002) (joint and several
liability appropriate where non-prevailing parties were
represented by same counsel, had common theories of liability,
and sought the same discovery); Petit v. City of Chicago, No.
90 C 4984, 2003 WL 22339277, at *3 (N.D. Ill. Oct. 10, 2003) (joint and several liability appropriate where
non-prevailing parties were represented by same counsel, and
almost all of costs incurred related to general matters
applicable to each plaintiff's claim). Since GI and Motorola did
not differentiate between the costs incurred defending against
Zenith's claims, and those incurred defending against WH-TV's
claims, joint and several liability for costs would be
IV. WH-TV's Objections to GI's and Motorola's Bill of Costs
A. Transcripts and Deposition Exhibits (Bill of Costs at 1-9)
GI and Motorola claim hearing transcript costs of $1,297.12.
WH-TV argues that GI and Motorola improperly seek to recover the
higher cost of transcripts ordered on an expedited basis, and
that they should be allowed to recover only the cost of
transcripts at the regular, non-expedited rate. GI and Motorola
respond that WH-TV ordered many of the transcripts on an
expedited basis, and that GI and Motorola merely ordered the
transcripts on the same terms. GI and Motorola argue that they
would have been prejudiced if WH-TV and Zenith had had the
benefit of expedited transcripts and GI and Motorola had ...