United States District Court, N.D. Illinois, Eastern Division
November 15, 2004.
WILLIAM HELZING, Plaintiff,
LOYOLA UNIVERSITY OF CHICAGO Defendant.
The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
On August 13, 2004, the Court granted summary judgment in favor
of Defendant Loyola University of Chicago. Defendant proceeded to
file a Bill of Costs seeking $7,958.92. Specifically, Defendant
seeks: 1) $6,458.09 for court reporting and transcription; 2)
$1,296.83 for exemplification and photocopying; and 3) $204.00
for computerized legal research. Plaintiff objects and asks the
Court to deny the entire Bill of Costs or, in the alternative, to
reduce the Bill of Costs to $6,364.06.
Federal Rule of Civil Procedure 54(d) 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)(1). Recoverable costs include: 1) clerk and marshal
fees; 2) fees for necessary transcripts obtained for use in the
case; 3) witness fees and expenses; 4) fees for copies of papers
necessarily obtained for use in the case; 5) docket fees; and 6)
compensation for court-appointed experts and interpreters. See
28 U.S.C. § 1920; see also Weeks v. Samsung Heavy Indus. Co.,
Ltd., 126 F.3d 926, 945 (7th Cir. 1997). There is a strong
presumption in favor of awarding costs to the prevailing party
under Rule 54(d). Majeske v. City of Chicago, 218 F.3d 816, 824
(7th Cir. 2000). This presumption is difficult to overcome,
and the Court's discretion is narrowly confined it must award costs unless it establishes good reasons
for denying them. Weeks, 126 F.3d at 945. The Court may tax
costs against the non-prevailing party when the cost imposed is
recoverable and the amount assessed is reasonable. Majeske,
218 F.3d at 824.
I. Costs Are Appropriate
Generally, courts may deny costs for two reasons: 1) the
prevailing party engaged in misconduct worthy of a penalty; or 2)
the losing party is unable to pay. Weeks v. Samsung Heavy Indus.
Co., Ltd., 126 F.3d 926, 945 (7th Cir. 1997). Plaintiff
argues that he is unable to pay costs because of a substantial
loss of money and indebtedness due to a series of tragic events.
Defendant argues that a claim of financial difficulty is
insufficient to warrant a court's denial of costs.
To overcome the presumption that costs are to be awarded to the
prevailing party, the losing party must demonstrate that he is
indigent. McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir.
1994); Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1165
(7th Cir. 1983). It is not enough that the losing party shows
that he has limited financial resources. Burroughs v. Hills,
741 F.2d 1525, 1533 (7th Cir. 1984); Washington v. Village
of Riverside Illinois, No. 01 C 7438, 2003 WL 21789000, at *2
(N.D. Ill Aug. 4, 2003). "It is unfortunate that the costs may be
large and the losing [party] may be hard-pressed to pay them, but
we cannot find in those circumstances a good basis for denying
costs . . . under Rule 54(d). . . ." Delta Air Lines, Inc. v.
Colbert, 692 F.2d 489, 491 (7th Cir. 1982). Further, the
losing party must establish that not only is he presently unable
to pay costs, but also that he will likely be unable to pay costs
in the future. McGill, 18 F.3d at 459. Plaintiff testifies that several tragic accidents have depleted
his savings and left him deeply indebted, which, combined, make
him unable to pay the costs. Specifically, he asserts that he has
no savings, no money in checking, no investments, stocks, or
bonds, $15,000 in an IRA, and $3,500 in his wife's IRA.
Additionally, he states that he owes more than $37,000 in
personal loans, more than $37,000 in credit card debt, $12,000 on
a car loan, and will incur substantial medical bills in the
future. Plaintiff estimates that his monthly living expenses are
more than $7,000. Even considering all of these expenses,
Plaintiff is not indigent. Plaintiff's and his wife's combined
monthly take home pay equals approximately $9,000, more than
enough to cover the estimated monthly living expenses. Further,
Plaintiff owns a home valued around $360,000, with nearly
$100,000 in equity. While the Court sympathizes with Plaintiff
regarding his recent tragedies, the Court cannot determine that
Plaintiff is indigent. Accordingly, Defendant is entitled to an
award of recoverable costs.
II. Specific Costs Recoverable Under The Statute
A. Court Reporting and Transcript Fees
Defendant seeks a total of $6,458.09 in court reporting and
transcript fees. Plaintiff argues that Defendant may not recover
costs computed at rates set above those established by the
Judicial Conference of the United States. Plaintiff also asserts
that Defendant is not entitled to delivery charges or costs
associated with their request for a transcript of a pretrial
hearing. Finally, Plaintiff argues that a copy rate of $0.30 a
page is unreasonable.
1. Court Reporter Fees
Local Rule 54.1(b) of the Northern District Court of Illinois
mandates that "the costs of the transcript or deposition shall
not exceed the regular copy rate as established 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 by order of
court." At the time of Defendant's depositions, the established
Judicial Conference rates for this district were: $3.30 per page
for an original transcript, $4.40 per page for each expedited
copy, $0.83 per page for a copy of a transcript to each party,
and $0.55 per page for each additional copy to the same party.
See General Order, United States District Court, Northern
District of Illinois
Defendant acknowledges that rates for nine out of ten
deposition transcripts exceed the established rate of $3.30 per
page, but argues that it is entitled to costs at the excess rate
because Plaintiff's attorney selected the court reporters for
these depositions. Defendant asserts that it should not be
penalized for being forced to pay an amount over the Judicial
Conference per page rate when it had no control over selecting
the court reporter or negotiating a rate within the established
limit. Defendant urges the Court to use its discretion and allow
it to recover its costs at a rate in excess of the Judicial
Conference's established limit. Local Rule 54.1 states the Court
"shall not exceed" the rate established by the Judicial
Conference of the United States. (emphasis added). The Court,
therefore, will reduce Defendant's costs in accordance with the
Judicial Conference rates. See also Tirapelli v. Advanced
Equities, Inc., 222 F. Supp. 2d 1081, 1084-85 (N.D. Ill. 2002)
(stating it was not persuaded by the defendants' argument that
they should receive costs at higher rates because the plaintiffs
selected the court reporter). Accordingly, Defendant is entitled
to $5,717.97 for court reporting costs.
2. Delivery and Copying Costs
In addition to court reporting fees, Defendant seeks costs
amounting to $99.49 for the delivery of the transcripts and
$20.10 for the photocopying of exhibits. Plaintiff contends that
delivery charges are generally considered ordinary business
expenses and should not be recoverable in a bill for costs unless Defendant provides an
explanation for why the delivery charges should be included.
Plaintiff also argues that the photocopy rate is unreasonable and
should be reduced to $0.10 per page.
The Court has the discretion to award costs "incidental" to the
taking of depositions, including per diem and delivery charges by
the court reporter. Finchum v. Ford Motor Co., 57 F.3d 526, 534
(7th Cir. 1995). Under the Judicial Conference guidelines,
however, postage or other delivery costs are considered ordinary
business expenses, and as such cannot be recovered. VI JUDICIAL
CONFERENCE OF THE UNITED STATES, GUIDE TO JUDICIARY POLICIES AND
PROCEDURES, COURT REPORTERS' MANUAL, Ch. 20, pt. 20.9.4;
Vigortone Ag Products, Inc. v. PM Ag Products Inc., No. 99 C
7049, 2004 WL 1899882, at *7 (N.D. Ill Aug. 12, 2004); Solon v.
Kaplan, No. 00 C 2888, 2004 WL 1672909, at *2 (N.D. Ill July 23,
2004); Angevine v. WaterSaver Faucet Co., No. 02 C 8114, 2003
WL 23019165, at *5 (N.D. Ill. Dec.23, 2003). Accordingly, the
Court does not award Defendant the $99.49 in transcript delivery
Plaintiff does not object to an award of costs for the
photocopying of exhibits, but rather challenges the $0.30 per
page rate sought by Defendant. District courts in this region
have held copy rates between $0.10 and $0.20 per page to be
reasonable. Harkins v. Riverboat Servs., Inc.,
286 F. Supp.2d 976, 982 (N.D. Ill 2003). A $0.30 per page copy rate
is well out of the range of reasonable rates. Consequently, the Court
exercises its discretion to reduce the recoverable per page rate
to $0.10 per page given Plaintiff's difficult circumstances and
awards Defendant $6.70 in costs for copying deposition exhibits.
3. Pretrial Hearing Transcript Cost Defendant seeks $39.60 for a transcript of a August 28, 2003
pretrial hearing. Plaintiff argues that Defendant is not entitled
to recover this cost because Defendant has not provided an
explanation as to why it was necessary to obtain the transcript
and because Defendant could have filed the motion as part of its
motions in limine if its motion for summary judgment was denied.
The costs of transcripts of pretrial proceedings are taxable as
costs under Rule 54(d). SK Hand Tool Corp. v. Dresser Indus.,
Inc., 852 F.2d 936, 944 n. 9 (7th Cir. 1988). In determining
whether such costs are recoverable, the Court must consider
whether it was reasonably necessary for the prevailing party to
obtain them. Vigortone Ag Prods., Inc. v. PM Ag Prods., Inc.,
No. 99 C 7049, 2004 WL 1899882, at *10 (N.D. Ill Aug. 12, 2004).
Defendant argues that the transcript was necessary to limit the
issue of whether Plaintiff's treating physicians could render
expert opinions on causation. A transcript "need not be
absolutely indispensable" to justify an award of costs. Barber
v. Ruth, 7 F.3d 636, 645 (7th Cir. 1993). Accordingly,
Defendant is entitled to $39.60 in costs for the transcript of
the August 28, 2003 pretrial hearing.
B. Exemplification And Copying Fees
Defendant seeks a total of $1,246.83 in copying costs.
Plaintiff objects to this award on the grounds that the per page
rate is unreasonable. Plaintiff also argues that the Defendant's
request is vague and includes no description of the documents,
making it impossible to determine if these documents were
necessarily obtained for use in the case.
28 U.S.C. § 1920, which defines the term "costs" as used in
Rule 54(d), authorizes "[f]ees for exemplification and copies of
papers necessarily obtained for use in the case."
28 U.S.C. § 1920(4) (2000); Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 437, 441, 107 S. Ct. 2494, 2497, 96 L. Ed. 2d 385 (1987).
Photocopying charges made only for the convenience of the
attorney are not recoverable. Riley v. UOP LLC,
258 F. Supp. 2d 841, 843 (N.D. Ill 2003). In proving that copies were necessarily obtained for use in the
case, a party is required to provide "the best breakdown
obtainable from retained records." Northbrook Excess & Surplus
Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 643 (7th
Defendant's Bill of Costs specifies that the documents copied
were case files regarding discrimination complaints filed by
other employees against Defendant. Plaintiff requested these
documents, and Defendant produced them pursuant to the Court's
August 28, 2003 ruling on Plaintiff's motion to compel.
Defendant's Reply To Plaintiff's Response To Defendant's Bill Of
Costs includes documentation regarding specifically what
documents were copied. (R. 60-1, Def.'s Reply, Ex. B, Def's Third
Supp. Resp To Pl.'s Request For Prod. of Docs.) The Court finds
that these documents were necessarily obtained for use in the
Defendant's supporting documentation for its Bill of Costs
indicates that 6,394 pages were copied for a total of $1,246.83,
resulting in a per page rate of $0.195. Defendant does not
indicate how many copies of these documents were made, but it
appears from the invoice that whatever copies were made, were
sent by messenger directly to Plaintiff. Plaintiff has not
complained about the number of copies it received, so the Court
will infer that the number of copies made was reasonable. The
copy rate of $0.195 per page is within the reasonable rate range
of $0.10 to $0.20. Harkins v. Riverboat Servs., Inc.,
286 F. Supp. 2d 976, 982 (N.D. Ill 2003). In light of Plaintiff's
difficult circumstances, however, the Court will exercise its
discretion and reduce the recoverable copy rate to $0.10.
Accordingly, Defendant may recover $639.40 in photocopying fees.
Defendant may not, however, recover the $50.00 messenger fee
because, as discussed above, delivery costs are considered
ordinary business expenses, and as such cannot be recovered. VI
JUDICIAL CONFERENCE OF THE UNITED STATES, GUIDE TO JUDICIARY POLICIES AND PROCEDURES, COURT REPORTERS' MANUAL,
Ch. 20, pt. 20.9.4.
C. Computerized Legal Research
Plaintiff objects to the $204.00 that Defendant seeks for
computerized legal research. Plaintiff argues that computerized
legal research charges are not recoverable as costs because they
are analogous to attorneys' fees. Plaintiff is correct. "Computer
research charges are considered a form of attorneys' fees."
Montgomery v. Aetna Plywood, Inc., 231 F.3d 399, 409 (7th
Cir. 2000); see also Angevine v. WaterSaver Faucet Co., No. 02
C 8114, 2003 WL 23019165, at *8-9 (N.D. Ill. Dec. 23, 2003)
(stating computerized legal research charges may be recovered as
attorneys' fees but not as "costs"); but see also Chamberlain
Mfg. Corp. v. Maremont Corp., No. 92 C 0356, 1995 WL 769782, at
*10 (N.D. Ill Dec. 29, 1995) (awarding computerized legal
research expenses). Consequently, Defendant may not recover the
$204.00 in Westlaw charges.
Accordingly, Defendant's Bill of Costs is granted in part and
denied in part. Defendant is entitled to recover $6371.70 in
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