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Gallagher v. Gallagher

June 24, 2010

KEVIN GALLAGHER, PLAINTIFF,
v.
SEAN GALLAGHER, SCOTT FISHMAN, JOHN LOWMAN, AND THE CITY OF HIGHLAND PARK, DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly United States District Judge

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge

On April 15, 2010, the Court entered judgment in favor of defendants, the City of Highland Park and Highland Park police officers Sean Gallagher, Scott Fishman and Jon Lowman, and against plaintiff Kevin Gallagher, based on a jury verdict. The defendants have petitioned for an award of costs in the amount of $12,377.85 pursuant to Federal Rule of Civil Procedure 54(d). For the reasons stated below, the Court awards the defendants costs in the amount of $6,755.05.

Discussion

A prevailing party is presumptively entitled to recover "[c]osts other than attorney's fees" as a matter of course, Fed. R. Civ. P. 54(d)(1), and "the losing party bears the burden of an affirmative showing that taxed costs are not appropriate." Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir. 2005). A court must determine whether the costs are recoverable and whether they were reasonably necessary to the litigation. Majeske v. City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000); Deimer v. Cincinnati Sub-Zero Products, Inc., 58 F.3d 341, 345 (7th Cir. 1995). Recoverable costs include "(1) [f]ees of the clerk and marshal; (2) [f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) [f]ees and disbursements for printing and witnesses; (4) [f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) [d]ocket fees under section 1923 of this title; (6) [c]ompensation 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. Additionally, it is "within the discretion of the district court to consider a plaintiff's indigency in denying costs under Rule 54(d)." Badillo v. Cent. Steel & Wire Co., 717 F.2d 1160, 1165 (7th Cir. 1983).

1. Gallagher's Claimed Indigence

Gallagher argues that costs should be denied due to his indigence. The indigence exception to the presumption that a prevailing party is entitled to costs "is a narrow one." Rivera v. City of Chicago, 469 F.3d 631, 636 (7th Cir. 2006). A court must make a threshold finding that the losing party is "incapable of paying the court-imposed costs at this time or in the future." Id. at 635 (quoting McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994)). The losing party must provide evidence sufficient to show his inability to pay the costs both currently and in the future. Id. at 635; Congregation of the Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219, 222 (7th Cir. 1988). The court also "consider[s] the amount of costs, the good faith of the losing party, and the closeness and difficulty of the issues raised." Rivera, 469 F.3d at 635.

Gallagher provides insufficient evidence to demonstrate an inability to pay an award of costs in the future. There is no evidence that he suffers from any health issues that might prevent him from finding work, nor is he responsible for the caretaking of anyone other than himself. Moreover, the occasional work he performs for Gallagher Engineering indicates a continued ability to enter the workforce. In short, Gallagher's demonstrated ability to find employment to cover his monthly expenses undermines his claim that he is incapable of paying court-imposed costs.

2. Appropriateness of Individual Costs

a. Expert Fees

Gallagher objects to reimbursement of the fees charged by defendants' expert witness Dr. Rick Gimbel. As a general rule, expert fees beyond the limits prescribed by 28 U.S.C. § 1821 are not recoverable as costs. See Henkel v. Chicago, St. P., M. & O. Ry. Co., 284 U.S. 444, 446 (1932); Chicago College of Osteopathic Medicine v. George A. Fuller Co., 801 F.2d 908, 909-10 (7th Cir. 1986); Fletcher v. Chicago Rail Link, LLC, No. 06 C 842, 2007 WL 4557816, * 1 (N.D. Ill. Dec. 20, 2007). The statutory maximum amount recoverable is "$40 per day for each day's attendance" when the witness testifies, along with travel and subsistence expenses. 28 U.S.C. § 1821. The Court agrees with Gallagher and reduces defendants' bill of costs by $1,900.

b. Photocopying of Multiple Sets of Documents Produced in Discovery

Gallagher objects to defendants' request for reimbursement of charges for duplicating discovery materials. Section 1920 provides for the taxation of costs associated with "making copies of any materials where the copies are necessarily obtained for use in the case." 28 U.S.C. § 1920. Such materials include discovery documents, so long as the court can determine and justify that the copies are reasonably necessary and not simply for the convenience of attorneys. See Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000) (finding that "two copies of every document.makes sense" and is useful in ensuring each party to a case has a copy of the document); Northbrook Excess & Surplus Ins. Co. v. Proctor & Gamble Co., 924 F.2d 633, 643 (7th Cir. 1991); NLFC, Inc. v. Devcom Mid-America, Inc., 916 F. Supp. 751, 763 (N.D. Ill. 1996).

Gallagher argues that the multiple sets of discovery materials were simply for the convenience of the defendants' lawyers. Though he relies on NLFC, the court in that case denied more than one copy's worth of duplication costs because the prevailing party failed to explain why multiple copies were necessary. NLFC, Inc., 916 F. Supp. at 763. Here, by contrast, defendants indicate under the discovery duplication listings for August 13, 2008, November 5, 2008, November 11, 2008, and January 30, 2009 that the records being copied were obtained in response to a production request. Although listings for June 17, 2009 and June 26, 2009 are without a similarly stated justification, the June 17 listing is only for one copy and the June 26 ...


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