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JACK-GOODS v. STATE FARM MUTUAL AUTO. INS. CO.

July 22, 2004.

BARBARA JACK-GOODS, Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendant.



The opinion of the court was delivered by: SIDNEY SCHENKIER, Magistrate Judge

MEMORANDUM OPINION AND ORDER

On May 6, 2004, this Court granted summary judgment for the defendant, State Farm Mutual Automobile Insurance Company ("State Farm"), and against the plaintiff, Barbara Jack-Goods, on her Title VII claim for sex and race discrimination. See Jack-Goods v. State Farm Mutual Automobile Insurance Co., No. 01 C 6536, 2004 WL 1093356 (N.D.Ill. May 6, 2004). As the prevailing party in this lawsuit, State Farm filed a bill of costs seeking $4,262.54 (Def.'s Bill at 4). The plaintiff objected to the bill of costs (Pl.'s Resp. at 1), and, in its reply, State Farm reduced its bill of costs to $3,398.80 (Def.'s Reply at 6). For the reasons that follow, the Court grants in part and denies in part the bill of costs, and awards $3,209.99 in costs to State Farm.

I.

  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 that 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) (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.

  Here, the plaintiff does not assert any misconduct by State Farm, but does claim that she "is not able to pay the defendant's cost as she is indigent" (Pl.'s Resp. 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 America, 1997 WL 583063, at *1 (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, plaintiff has stated in her response to State Farm's bill of costs that she "has been unable to find steady employment," although she worked as a substitute teacher when she was able (Pl.'s Resp. at 2). She also stated that her husband was laid off and "only recently found new work," that their "savings and assets have been exhausted," and their car was taken because they were unable to make the payments (Pl.'s Resp. at 2). Plaintiff stated that she and her husband "sought public assistance while they continue to look for employment," and that they receive financial support from friends and family (Pl.'s Resp. at 2).

  While we are sympathetic to plaintiff's professed difficult economic circumstance, we conclude that she has failed to establish the narrow indigency exception to an award of costs. The summary assertions set forth in the response are not evidence; and, the plaintiff has failed to supply an affidavit or other specific evidence showing indigency. See McGill, 18 F.3d at 459 (response to petition for costs that merely alleged indigency without documentary support was insufficient); Jansen v. Packaging Corporation of America, 1997 WL 583063, at *1-2 (N.D.Ill Sept. 11, 1997) (party claiming indigency must provide specific evidence demonstrating indigency); Rao v. County of Cook, Illinois, 2004 WL 856551, at *1-2 (N.D.Ill. Apr. 21, 2004).

  What's more, even if plaintiff's unsworn statements showed a current inability to pay costs, they would be insufficient to show an inability to pay "in the future," a showing that is required under McGill. Plaintiff's brief shows that she is employable, and has in fact worked periodically since her separation from State Farm. There is nothing in plaintiff's submission to indicate that plaintiff will not be employed in the future, or that she will be unable to pay costs at that time. The plaintiff has failed to show that she is indigent, and the defendant is therefore entitled to an award of costs.

  II.

  Thus, we turn to the question of what cost 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. § 1928. 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

  State Farm seeks $2,973.91 in costs for obtaining seven deposition transcripts (Def.'s Reply, Ex. A at 3-4). 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 objected to State Farm's original bill of costs because State Farm calculated copy charges for depositions that exceeded the rates set by the Judicial Conference of the United States and "in effect at the time 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 (emphasis added). In its reply, State Farm acknowledged that the amounts it originally sought for deposition transcripts exceeded those set forth by the Judicial Conference, and it agreed to seek the amount allowed according to the Judicial Conference rates (Def.'s Reply at 3). State Farm asserts that "recent opinions" set the rate for deposition transcripts at $3.30 per page for original transcripts and $0.83 per page for copies (Def.'s Reply at 3-4). However, Local Rule 54.1(b) makes it clear that the applicable rate is the rate in effect at the time the transcript or deposition was filed; and the rates in effect between September 10, 2002, and February 7, 2003, the time period during which the depositions were taken, were $3.00 per page for original transcripts and $0.75 per page for copies. See Chemetall v. ZR Energy, 2001 WL 1104604, at *24 (N.D.Ill. Sept. 18, 2001) (Judicial Conference rates are $3.00 per page for an original transcript and $0.75 per page for the first copy of a transcript); Ammons v. Aramark Uniform Services, 2003 WL 685871, at *2 (N.D.Ill. Feb. 27, 2003). Therefore, State Farm may recover deposition transcript costs at $3.00 per page for original transcripts and $0.75 per page for copies.

  Plaintiff also claims that the additional cost State Farm originally requested for the expedited transcript of Scott Lewis' deposition is not reasonable or necessary (Pl.'s Resp. at 3-4). Although State Farm asserts that the additional cost of the expedited transcript was both reasonable and necessary, State Farm has agreed not to pursue recovery of the additional cost for an expedited transcript (Def.'s Reply at 4). However, because State Farm obtained the original ...


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