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Extra Equipamentos E Exportação Ltda. v. Case Corp.

May 24, 2007


The opinion of the court was delivered by: Hon. Blanche M. Manning


After prevailing on its motion for summary judgment, defendant Case Corporation seeks reimbursement for its costs of litigation to the tune of $246,295.79. Plaintiff Extra Equipamentos E Exportação Ltda. objects to most of those costs. For the reasons that follow, the court grants in part and denies in part Case's request for costs.


Federal Rule of Civil Procedure 54(d) provides that "[c]osts . . .shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed. R. Civ. P. 54(d). Recoverable costs include: (1) fees of the clerk; (2) fees for transcripts; (3) fees for printing and witnesses; (4) fees for copies of papers necessarily obtained for use in the case; (5) docket fees; and (6) compensation of court appointed experts and interpreters. See 28 U.S.C. §1920. Rule 54(d) creates a strong presumption favoring the award of costs to the prevailing party. See Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 945 (7th Cir.1997). "The presumption 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." Id.


General Objection

Before turning to the specific items for which Case seeks costs, the court first addresses Extra's general objection to awarding costs at all. According to Extra, Case ultimately prevailed on a legal argument "that required no discovery and no litigation to resolve." The legal argument upon which Case prevailed was that Extra could not establish fraud because it could not establish that its reliance on extra-contractual statements was reasonable given the existence of a non-reliance clause. Extra argues that if Case had raised that argument in a motion to dismiss rather than in a motion for summary judgment, most of Case's costs could have been avoided.

While costs will normally be awarded to a prevailing party, costs can be partially or completely denied if the prevailing party engaged in misconduct or bad faith that would justify denying costs as a penalty. See Contreras v. City of Chicago, 119 F.3d 1286, 1295 (7th Cir. 1995); see also EEOC v. Sears, Roebuck & Co., 114 F.R.D. 615, 620 (N.D. Ill. 1987) (costs will be denied only "upon a showing by the losing party of the prevailing party's bad faith or misconduct"). Extra argues that Case's failure to raise the issue of the reasonableness of Case's reliance any earlier justified denying an award of costs, citing Chicago Sugar Co. v. American Sugar Refining Co., 176 F.2d 1, 11 (7th Cir. 1949) (one basis for denying an award of costs would be the defendant's delay "in raising objection fatal to the plaintiff's case"). However, Chicago Sugar did not involve the delayed assertion of a defense. The only case Extra cites which denied costs based upon delay alone is Harland v. Bankers' & Merchants' Tel. Co., 32 F. 305, 309 (S.D.N.Y. 1887), in which the defendant failed to assert an obvious defense (lack of ownership) at any stage of the case. But the decision in Harland is at odds with the requirement set forth in more recent cases that only misconduct or bad faith would warrant denying a prevailing party its reasonable requests for costs. See Contreras, 119 F.R.D. at 1295; Sears, Roebuck, 114 F.R.D. at 620.

Although Extra asserts that Case unnecessarily delayed raising its reasonable reliance defense, Extra has offered no evidence that Case intentionally delayed for any dilatory purpose. In the absence of any evidence of misconduct or bad faith, Extra has failed to establish any basis for imposing upon Case the penalty of denying its reasonable requests for costs. Having concluded that Case is entitled to costs, the court will not examine the reasonableness of Case's requests.

Fees for the Court Reporter

Case seeks to recover court reporter fees in the amount of $23,475.74. Under 28 U.S.C. § 1920(2), costs for the "[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case" can be recovered. The total court reporter fees Case seeks consists of the following components: (1) court reporter appearance fees; (2) fees for copies of deposition transcripts; (3) fees for videotaping depositions; (4) fees for copies of court hearing transcripts; and (5) fees for copies of deposition exhibits. Extra does not object to the fees for copies of deposition transcripts and for the transcript of one court hearing, but does object to the remaining costs.

Court Reporter Appearance Fees

Although some courts have held that court reporter appearance fees cannot be recovered, those cases fail to acknowledge the Seventh Circuit's conclusion that they can be recovered if the court determines, in its discretion, that the costs were reasonable. See Held v. Held, 137 F.3d 998, 1002 (7th Cir. 1998). Case has detailed the time spent and the total appearance fee charged for each deposition, from which the court has determined, in its discretion, that ...

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