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FMS, Inc. v. Volvo Construction Equipment North America

June 29, 2009

FMS, INC., A MAINE CORPORATION, PLAINTIFF,
v.
VOLVO CONSTRUCTION EQUIPMENT NORTH AMERICA, INC., A DELAWARE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge

MEMORANDUM OPINION

This matter comes before the court on the bill of costs of Defendant Volvo Construction Equipment North America, Inc. ("Volvo"). For the reasons set forth below, we award costs in the amount of $58,615.69.

BACKGROUND

This case was initially filed in Arkansas state court but was removed to federal district court in the Eastern District of Arkansas on grounds of diversity jurisdiction. Shortly thereafter, it was transferred to this court. After extensive pretrial proceedings, including a six-month discovery period, the case went to trial; the jury returned a verdict and damage award of $2.1 million in favor of Plaintiff FMS, Inc. Volvo appealed, and on April 16, the Seventh Circuit reversed the judgment and ordered entry of judgment in favor of Volvo. On May 18, Volvo filed the instant bill of costs pursuant to Fed. R. Civ. P. 54. The bill requests $60,169.69 for costs incurred from fees of the clerk, deposition and transcript costs, copying and exemplification costs, witness fees, costs assessed by the court of appeals and included in the mandate, and costs related to a supersedeas bond.

LEGAL STANDARD

Fed. R. Civ. P. 54(d)(1) permits a court to tax costs other than attorneys' fees in favor of a prevailing party, who enjoys the presumption that costs will be awarded. See M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1409 (7th Cir. 1991). Pursuant to 28 U.S.C. §1920, allowable costs include: fees of the court clerk, transcript fees, fees for printing and witnesses, fees for copying and exemplification of papers necessarily obtained for use in the case, docket fees, and compensation for court-appointed experts or interpreters. Fed. R. App. P. 39(e) further allows a district court to tax premiums paid for a supersedeas bond or other bond to preserve rights pending appeal and the fee for filing the notice of appeal. Finally, Fed. R. App. P. 39(d)(3) permits district courts to tax costs shown on the mandate of the court of appeals. When presented with a request to tax costs, a district court must determine which costs sought by the prevailing party are allowable, reasonable, and necessary. Soler v. Waite, 989 F.2d 251, 255 (7th Cir. 1993).

DISCUSSION

The parties' submissions present two questions for resolution: whether the Bill of Costs was timely filed and whether the amounts requested are allowable, reasonable, and necessary. As timeliness is a threshold inquiry, we address it first.

FMS asserts that the bill of costs should be denied in its entirety because it was not filed within 14 days after entry of judgment. FMS contends that Fed. R. Civ. P. 54(d) and Fed. R. App. P. 39(d) both require a bill of costs be filed within 14 days. Fed. R. Civ. P. 54(d) and Fed. R. App. P. 39(d) establish a default 14-day timeframe; both rules allow for a different time to be set by court order. However, Local Rule 54.1 states that a bill of costs is to be filed within 30 days after judgment is entered. Local rules have the force of a court order. Johnson v. Lafayette Fire Fighters Ass'n, 51 F.3d 726, 729 (7th Cir. 1995). Therefore, in this situation, it is Local Rule 54.1, the equivalent of a court order, that establishes the operative deadline: 30 days.*fn1

FMS alternatively contends that if 30 days is the applicable period, Volvo's motion was filed 32 days after judgment was entered, making it untimely even under the more generous period established by Local Rule 54.1. While it is true that 32 days elapsed between the entry of judgment and the filing of the bill of costs, the 30th day after judgment was entered was a Saturday. In such a circumstance, Fed. R. Civ. P. 6(a)(3) extended the deadline to the next business day, which was Monday, May 18, 2009. Volvo filed its bill of costs that day, and thus the filing was timely under Local Rule 54.1.

Since the bill of costs was timely filed, we turn to the merits of Volvo's requests. It seeks compensation for a total of $60,169.69 in costs incurred while defending this case. Though FMS did not raise any objections as to the itemized costs, it remains incumbent on the district court to determine which costs are allowable, reasonable, and necessary. Soler, 989 F.2d at 255.

1. Appellate Filing Fee

The first amount Volvo seeks is the $455.00 filing fee it paid to institute its appeal in the Seventh Circuit. Fed. R. App. P. 39(e)(4) provides for recovery of an appellate filing fee by a prevailing appellant. The amount is reasonable and necessary in that it is the ...


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