United States District Court, N.D. Illinois, Eastern Division
June 20, 2005.
THOMAS SIMPSON, Plaintiff,
MURRAY'S DISCOUNT AUTO, Defendant.
The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
MEMORANDUM OPINION AND ORDER
On March 3, 2005, the Court dismissed Thomas Simpson's
("Plaintiff") claims against the Murray's Discount Auto
("Defendant"). The Court has now entered a final judgment in this
case and Defendant seeks to recoup from Simpson, under Federal
Rule of Civil Procedure ("Rule") 54(d), the costs it incurred to
defend against his claims. For the following reasons, Defendant
may recover statutory costs in the total amount of $760.55.
Simpson's sole objection to Defendant's bill of costs is that
he is under considerable financial hardship and is unable to bear
the financial burden of the costs. Simpson filed his lawsuit pro
se in October 2003, at which time he was able to pay the filing
fee. By January of the following year, the Court appointed an
attorney to represent Simpson in the matter. Federal Rule of Civil Procedure 54 provides that "costs . . .
shall be allowed as of course to the prevailing party unless the
court otherwise directs." Fed.R.Civ.P. 54(d)(1). Rule 54, our
court of appeals has observed, creates a presumption in favor of
the award of costs. M.T. Bonk Co. v. Milton Bradley Co.,
945 F.2d 1404, 1409 (7th Cir. 1991). Despite this presumption, the
decision to award costs remains in the court's discretion. Id.
One factor we may consider in deciding whether to award costs is
the losing party's indigency. Badillo v. Cent. Steel & Wire
Co., 717 F.2d 1160, 1165 (7th Cir. 1983) ("We feel that it is
within the discretion of the district court to consider a
plaintiff's indigency in denying costs under Rule 54(d)."). In
order to avoid paying costs based on an inability to pay, the
losing party carries the burden of showing that he or she is
indigent. Santiago v. Orland Park Motor Cars, Inc., No.
01-C8293, 2004 WL 434208, at *1 (N.D. Ill., Feb 18, 2004). This
can be done by submitting admissible evidence that he or she is
unable to pay the costs and will be unable to do so in the
Simpson has provided no information regarding his financial
status beyond the unsupported assertions in his brief that he is
unable to bear the financial burden of Defendant's costs. The
fact that he was appointed counsel is not sufficient evidence
that he is now indigent. Therefore, Simpson is not excused from
his obligations to pay Defendant's reasonable costs.
The costs recoverable under Rule 54(d) are circumscribed by
statute and include:
(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.
28 U.S.C. § 1920.
We can award costs under Rule 54(d) if there is statutory
authority for them and they are reasonable and were necessary to
the litigation. The costs Defendant seeks to recover for
depositions and photocopies of court documents are authorized by
the statute and were necessary to the litigation. The only
question then is whether they are reasonable.
Defendant seeks $244.00 for copies of papers necessarily
obtained for use in the case, including $183.60 for pleadings and
$60.40 for documents produced in response to Plaintiff's
discovery requests. The itemized list Defendant has provided is
detailed enough to conclude that these costs are reasonable, with
one exception. Defendant seeks to recoup costs in triplicate for
copies of all of its pleadings, including those not filed with
the Court. Defendant may recover costs for two copies of
briefings filed with the court and one copy for opposing counsel.
See Rogers v. City of Chicago, No. 02-C2227, 2002 WL 423723, at
*5 (N.D. Ill. March 15, 2002). In the case of interrogatories,
disclosures under 26(a)(1) and requests for documents, however,
Defendant did not file these documents with the Court and is,
therefore, only entitled to recover for the cost of copies served
upon Plaintiff. We will, therefore, award only one-third of the
requested amount of $47.40 for these documents, reducing the
award to $15.80. Defendant is awarded $212.40 for copies of
papers obtained for use in the case.
Defendant seeks $1,526.65 for deposition costs. Local Rule
54.1(b) 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 of the transcript or deposition was filed unless some other rate was previously provided for by order of
court." The current rate, in effect when the depositions in this
case were taken, is $3.30 per page for an original transcript and
$0.83 per page for a transcript copy. The court has the
discretion to deny a request for costs where the prevailing party
fails to provide information necessary to determining whether the
request is reasonable. See Shah v. Vill. of Hoffman Estates,
No. 00-C4404, 2003 WL 21961362, at *1 (N.D. ILL. 2003) ("Where a
party seeking costs fails to specifically identify the number of
pages in a requested transcript, no costs will be awarded.").
Defendant has not provided sufficient information in its bill
of costs to determine whether its request for costs incident to
the taking of depositions is reasonable. We are given the date
the depositions of Thomas Simpson, Denise Gray, Clifton Hansen,
and Jeff Foutz, and an amount Defendant would like to recover for
each. Without more information, such as page length or detailed
information about the nature of these costs, we can deny them
outright. However, in light of the fact that Plaintiff has not
made any objections on these grounds, we examine the record to
determine whether Defendant's request may be reasonable. Excerpts
attached to Defendant's memorandum in support of it's motion for
summary judgment indicate the length of the depositions of Gray,
Hansen and Foutz. We will therefore award Defendant costs that
equal $3.30 times the number of pages in those depositions, or
the amount requested, whichever is lower. Defendant is awarded
$148.50 for the Gray deposition (45 pages × $3.30); $270.60 for
the Hansen deposition (82 pages × $3.30); and $129.15 for the
Foutz deposition, which is the amount requested rather than the
$135.30 (41 pages × $3.30) maximum allowed using the regular copy
rate. Because we cannot determine the page length for the Simpson
deposition, for which Defendant has requested $921.25, we will
not award this cost. Defendant is awarded $548.15 in deposition
Based upon the foregoing, the Court grant's Defendant's bill of
costs in the amount of $760.55.
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