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Gregorio Gutierrez v. P.A.L.

July 20, 2012

GREGORIO GUTIERREZ, PLAINTIFF,
v.
P.A.L., LTD., D/B/A ANGELINO'S AND PHILLIP PASCARELLA, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

On April 25, 2012, this court granted defendants' motion for summary judgment and judgment was entered in favor of Defendants, P.A.L., Ltd. and Phillip Pascarella. Defendants timely filed a bill of costs seeking to recover $1385.22 from plaintiff Greogorio Gutierrez. Plaintiff objected to defendants' bill of costs and defendants responded to plaintiff's objections. For the reasons stated below, defendants are entitled to a total of $547.05.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 54(d), a prevailing party may recover costs other than attorneys' fees unless otherwise disallowed by a statute, other rule, or court order. These costs do not include every out-of-pocket expense that might be incurred by a party in the course of litigation. Costs that are generally recoverable include: fees of the clerk and marshal; fees for printed or electronically recorded transcripts necessarily obtained for use in the case; fees and disbursements for printing and witnesses; fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; docket fees; and compensation of court-appointed experts and interpreters. 28 U.S.C. § 1920. In analyzing a bill of costs, 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). An award of costs requires two inquiries: "(1) whether the cost imposed on the losing party is recoverable and (2) if so, whether the amount assessed for that item was reasonable." Majeske v. City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000).

ANALYSIS

I. Service of Process Fees

Defendants seek to recover $500 that they paid to plaintiff for the costs he incurred in formally serving defendant Pascarella, who had refused to waive formal service of process. Plaintiff contends that because Pascarella failed to execute a valid waiver, he should not be taxed the $500 that was expended in personally that serving defendant. To support this assertion, plaintiff relies on Fed. R. Civ. P. 4(d), which sets forth a procedure for asking defendants to waive formal service and provides that a defendant who refuses to provide a waiver without good cause must bear the costs of effecting formal service. The underlying purpose of Rule 4(d) is "to eliminate the costs of service of a summons on many parties and to foster cooperation among adversaries and counsel." Fed. R. Civ. P. 4(d) Advisory Committee Note on 1993 Amendments.

A prevailing party cannot recover fees for not executing a valid waiver of service. See Deimer v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 345 (7th Cir. 1995); see also Estate of Darulis v. Garate, 401 F.3d 1060, 1063 (9th Cir. 2005) (concluding that even though defendants were the prevailing party in the litigation, they were required to pay costs of service because they failed to waive service of process). Further, defendants provide no authority to have this court tax the costs for service of process in this case. Accordingly, plaintiff's objection to defendants' claim for $500 in service of process fees is sustained.

II. Deposition Costs

Defendants seek deposition costs amounting to $656.45. This sum consists of $296.45 in transcript fees, $125 for a court reporter's appearance, $25 for an electronic transcript ("e-transcript") of plaintiff's deposition, and $210 in interpreter fees.

Deposition costs, including the costs of deposition transcripts, are recoverable under § 1920(2). Cengr v. Fusibond Piping Sys., 135 F.3d 445, 454 (7th Cir. 1998). Under Northern District of Illinois Local Rule 54.1(b), "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 the transcript or deposition was filed unless some other rate was previously provided for by order of court." The rate cap established in the Local Rule applies to deposition charges by private court reporters. Cengr, 135 F.3d at 456. When the deposition at issue occurred, the copy rate established by the Judicial Conference for regular original deposition transcripts was $3.65 per page and $0.90 per page for the first copy of those transcripts. N.D. Ill. General Order, Sept. 24, 2002.

Here, defendants seek $296.45 for a copy of plaintiff's 77-page deposition transcript. Based on the invoice from Absolute Reporters, Inc., defendants were charged $3.85 per page.*fn1

Because Absolute Reporters' per page copy rate exceeds the $3.65 rate established by the Judicial Conference, the cost to be taxed against plaintiff for a copy of the deposition is reduced to $281.05.*fn2

Defendants also seek to recover $125 in court reporter attendance fees. Contrary to plaintiff's assertion, these fees are recoverable under 28 U.S.C. § 1920(2). Held v. Held, 137 F.3d 998, 1002 (7th Cir. 1998) ("Even though these fees are not specifically mentioned in the statute, the district court may award them in its discretion pursuant to 28 U.S.C. § 1920(2)."). But the court reporter's attendance fee may be taxed as costs only to the extent that the fee, when added to the per-page rate charged for the deposition transcript, does not make the total charge per page exceed the applicable page rate established by the Judicial Conference. Higbee v. Sentry Ins. Co., No. 97 C 1349, 2004 WL 1323633, at *2 (N.D. Ill. June 11, 2004) (rates approved by the Judicial Conference cover all costs of transcript production) (citations omitted). As noted above, plaintiff's deposition consisted of 77 pages, and Absolute Reporters charged $3.85 per page as well as an attendance fee of $125. This court had to reduce the original cost of the deposition transcript to comport with the $3.65 maximum ...


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