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Allen Plyler v. Whirlpool Corporation

November 19, 2012

ALLEN PLYLER, PLAINTIFF,
v.
WHIRLPOOL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER

Plaintiff Allen Plyler ("Plyler") filed this suit against defendant Whirlpool Corporation ("Whirlpool") alleging counts of negligence and strict products liability. [Dkt 25.] The case was tried before a jury on March 12-14, 2012, and on March 15, 2012, the jury returned a verdict for Whirlpool on both counts. [Dkt 148-50, 155, 156.] Plyler timely filed a motion for a new trial, which was denied. [Dkt 157, 173.] As the prevailing party, Whirlpool now seeks costs under 28 U.S.C. § 1920 totaling $7,141.13. (Def.'s Am. Suppl.) [Dkt 187.] Plyler objects to Whirlpool's petition for costs in its entirety. [Dkt 161, 175, 191.] For the reasons stated below, Whirlpool is entitled to an award of costs in the amount of $5,673.09.

BACKGROUND

This is the third time that the court has examined Whirlpool's bill of costs. Whirlpool's original petition and amendment requested $11,383.19 in costs. [Dkt 159, 168.] After an initial review of Whirlpool's petition and amendment, the court determined that Whirlpool had not provided sufficient information for the court to assess whether the requested costs were reasonable and necessary. (Order, June 5, 2012.) [Dkt 171.] The court issued a detailed minute order describing the deficiencies in Whirlpool's submission and allowing Whirlpool to supplement its bill of costs. (Id.) Whirlpool did so and revised its request to $11,709.12. [Dkt 172.] Plyler submitted supplemental objections to the supplemental bill, again objecting to Whirlpool's petition in its entirety on the basis that Whirlpool had failed to provide sufficient support that its costs were reasonable and necessary. [Dkt 175.]

The court found Whirlpool's supplemental petition to be deficient and issued another minute order detailing the shortcomings. (Order, Aug. 14, 2012.) [Dkt 183.] Whirlpool was given one last chance to submit a more detailed bill of costs and Plyler was given time to respond. (Id.) Whirlpool was warned that "[a]ny costs not sufficiently supported will be denied." (Id. at 3.)Whirlpool submitted an amended supplemental bill of costs requesting $7,141.13*fn1 (Def.'s Am. Suppl. at 1), and Plyler again objected to the entire bill of costs in his further, supplemental objections. (Pl.'s Further Suppl. Obj.) [Dkt 191.]

DISCUSSION

Federal Rule of Civil Procedure 54(d)(1) provides that a prevailing party should recover costs other than attorneys' fees. Pursuant to 28 U.S.C. § 1920, recoverable costs are: (1) fees of the clerk and marshal; (2) fees for transcripts necessarily obtained for use in the case; (3) fees for printing and witnesses; (4) fees for exemplification and the costs of making copies of any materials where necessarily obtained for use in the case; (5) docket fees under 28 U.S.C. § 1923; and (6) compensation of court appointed experts and interpreters.*fn2

Taxing costs against the non-prevailing party requires two inquiries -- whether the cost is recoverable and whether the amount assessed is reasonable. Majeske v. City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000). "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). However, this presumption does not relieve the prevailing party from establishing that potentially recoverable costs it incurred were reasonable and necessary. Telular Corp. v. Mentor Graphics Corp., No. 01 C 431, 2006 WL 1722375 at *1 (N.D. Ill. June 16, 2006).

Whirlpool's submission breaks down its costs into three categories: "Court Reporting Costs;" "Exemplification of Records and Copies of Papers," and "Process Service and Witness Search." (Def.'s Am. Suppl. at 4-9.) Whirlpool asks for $2,926.64, $3,864.88, and $349.61 in each category respectively, and has provided invoices and other billing records in support of its request.*fn3 (Id.) Each of these categories and Plyler's respective objections are addressed in turn below.

I. Court Reporting Costs

Whirlpool seeks $2,926.64 for the transcription costs of six depositions and the trial testimony of Mr. Latack. (Id. at 4.) These costs are taxable under 28 U.S.C. § 1920(2). To recover these costs, the transcripts must be "necessarily obtained for use in the case." Barber v. Ruth, 7 F.3d 636, 645 (7th Cir. 1993) (quoting 28 U.S.C. § 1920(2)). "[T]ranscripts need not be absolutely indispensable in order to provide the basis of an award of costs; it is enough if they are reasonably necessary." Id. (internal quotation omitted). Here, the necessity of the transcripts is not at issue as all of the deposed witnesses testified at trial and the trial transcript was an exhibit in Whirlpool's response to Plyler's post-trial motion. (Def.'s Resp., Ex. A.) [Dkt 163.]

Further, in order to recover the costs of the transcripts, Whirlpool must provide adequate documentation to show that the amount requested does not exceed the copy rate as established by the Judicial Conference of the United States. See N.D. Ill. Loc. R. 54.1(b). The applicable copy rates for transcripts for all of Whirlpool's requests are $3.65 per page for originals and $0.90 per page for the first copy. See N.D. Ill. Gen. Order 07-0024, Oct. 29, 2007, http://www.ilnd.uscourts.gov/home/clerksoffice/CLERKS_OFFICE/CrtReporter/07024.pdf (last v i s i t e d N o v . 1 4 , 2 0 1 2 ; M a x i m u m T r a n s c r i p t R a t e s , http://www.ilnd.uscourts.gov/home/clerksoffice/CLERKS_OFFICE/ CrtReporter/trnscrpt.htm (last visited Nov. 14, 2012). Additional items such as disks, word indexes, extra copies, or delivery charges are regarded either as a convenience or an ordinary business expense for the lawyer and are not generally compensable. Harkins v. Riverboat Servs., Inc., 286 F. Supp. 2d 976, 980-81 (N.D. Ill. 2003). Minuscript costs are taxable if their use is justifiable, such as when attached to a summary judgment motion or when provided to the court for use at trial. See Gray v. Burke, No. 05 C 0059, 2007 WL 3334201 at *3-4 (N.D. Ill. Nov. 9, 2007). Charges for exhibit copies are not taxed as costs absent an explanation of why copies were necessary. See U.S. Fidelity & Guar. Co. v. Shorenstein Realty Servs., L.P., 803 F. Supp. 2d 920, 923 (N.D. Ill. 2011).

A. Depositions of Plyler

Whirlpool seeks $1871.78 for the two depositions of Plyler. (Def.'s Am. Suppl., Ex. A, B.) The invoiced per page rates of $3.45 and $3.65*fn4 are within the allowable range set by the ...


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