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John T. ("Tom") Minemyer v. R-Boc Representatives

June 26, 2012

JOHN T. ("TOM") MINEMYER, PLAINTIFF,
v.
R-BOC REPRESENTATIVES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

A.

The plaintiff, who prevailed in this litigation following trial by jury, has filed a Bill of Costs pursuant to Fed.R.Civ.P. 54(d) in the amount of $47,951.36, which includes costs incurred by both law firms that served as counsel for the plaintiff at various times during the course of the litigation. Of this total, $14,495.88 represents costs submitted by Douglas Chalmers. The remaining $33,455.38 represents amounts submitted by Eugene Friedman, who was counsel for the plaintiff from the beginning of this case until shortly before the trial began in 2012.

Before addressing defendants' objections to the submitted costs, there appears to have been a significant mathematical error made by the plaintiff as regards claimed costs incurred by Mr. Friedman that has apparently gone unnoticed by the parties. Even if all of the receipts submitted by Mr. Friedman are totaled without regard to recoverability -- and with admitted duplicate billings excluded from the total -- only $25,723.93 of the $33,612.08 requested appears in the receipts submitted, when those receipts are totaled on a calculator.*fn1 This $7,888.15 represents an error of 23% of submitted costs by Mr. Friedman. Mr. Chalmers' submission is also inaccurate, although to a far lesser degree. Of the $14,495.88 requested by Mr. Chalmers for court reporters, transcripts and copies, the submitted receipts total only $13,914.50. Thus, the submission is more than 23% overstated. See Spreadsheet attached as Exhibit A.

The Chalmers firm's costs are uncontested. Hence, he is awarded the entirety of the sum sought less the $581.38 inadvertent overage. The defendants' objections all go to Mr. Friedman's submission. Thus, the following analysis of costs below only considers Mr. Friedman's submission and is based on the total amounts supported by the receipts, themselves. From these amounts are then deducted, where appropriate, the amounts to which objection has properly been made by the defendants.

B.

Under Fed.R.Civ.P. 54(d)(1), "costs -- other than attorney's fees -- should be allowed to the prevailing party." Those "costs" are delineated in 28 U.S.C. § 1920: (1) fees of the clerk and marshal, (2) fees for printed or electronically recorded transcripts, (3) fees and disbursements for printing and witness, (4) fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case, (5) docket fees, and (6) compensation for court-appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services. See Taniguchi v. Kan Pacific Saipan, Ltd., 132 S.Ct. 1997, 2001 (2012); Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987); Weeks v. Samsung Heavy Industries Co., Ltd., 126 F.3d 926, 945 (7th Cir. 1997). Courts may not award costs not authorized by statute. Taniguchi, 132 S.Ct. at 2001, 2006; Winniczek v. Nagelberg, 400 F.3d 503, 504 (7th Cir. 2005); Barber v. Ruth, 7 F.3d 636, 644 (7th Cir. 1993); Northbrook Excess & Surplus Ins. Co. v. Proctor & Gamble Co., 924 F.2d 633, 642 (7th Cir. 1991); Zenith Electronics Corp. v. WH-TV Broadcasting Corp., 2004 WL 1631676, 1 (N.D.Ill. 2004).

"There is a presumption that the prevailing party will recover costs, 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). "The rule is generally thought a vestige of the English 'loser pays' rule." Anderson v. Griffin, 397 F.3d 515, 522 (7th Cir. 2005).

The taxation of costs against the losing party entails two inquiries: (1) whether the cost is recoverable; and (2) whether the amount assessed is reasonable. Majeske v. City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000). A painstaking judicial inspection of a bill of costs is unnecessary, however, because as Judge Posner has observed, there is a market constraint on running up excessive expenses. When incurring its expenses, the eventual prevailing party cannot be assured of victory and cannot assume that it will be reimbursed when the time comes to submit a bill of costs. Thus, the uncertainty of litigation acts as a governor on spending. Anderson, 397 F.3d at 522. Cf. Taniguchi, 132 S.Ct. at 2006 ("Indeed, 'the assessment of costs most often is merely a clerical matter that can be done by the court clerk.'")(citing Hairline Creations, Inc. v. Kefalas, 664 F.2d 652, 656 (7th Cir. 1981)).

The plaintiff seeks to recover costs in categories one, two, and four of § 1920. The defendants object to all three categories of charges. First, the defendants object to $14,142.87 of the $19,129.27 in submitted copying charges. Essentially, defendants argue that the costs for copying are not broken down sufficiently to ascertain that the costs are reasonable and that plaintiff submitted charges for copying that are not, as a matter of law, recoverable. Next, defendants object to the recoverability of $2,995.67 of the $13,713.81*fn2 in transcript fees. Here, defendants argue that some of the transcripts were not "necessarily obtained for use in the case" pursuant to 28 U.S.C. §1920(2) and that other charges for transcripts were duplicative and thus not recoverable. Finally, defendants object to $192.50 of the $419.00 in service charges and argue that the record does not support the service fees.

A.

Photocopying and Related Charges

1.

First, the plaintiff asks to recoup $19,129.27 in photocopying costs incurred by Mr. Friedman while he was representing plaintiff. In support of the request, the plaintiff has attached twelve different receipts from various copy services between July 2009 and October 2011. The twelve receipts total only $11,520.12. Of the receipts, the invoice dated 4/8/09 for $98.56 from Loop Legal ...


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