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Chicago Board Options Exchange, Inc. v. International Securities Exchange, LLC

United States District Court, Seventh Circuit

January 14, 2014

CHICAGO BOARD OPTIONS EXCHANGE, INCORPORATED, Plaintiff,
v.
INTERNATIONAL SECURITIES EXCHANGE, LLC, Defendant.

OPINION AND ORDER

JOAN H. LEFKOW, District Judge.

On April 10, 2013, the court entered final judgment in favor of plaintiff Chicago Board Options Exchange, Inc. ("CBOE") against defendant International Securities Exchange, LLC ("ISE"). (Dkt. 723.) On May 10, 2013, CBOE submitted a bill of costs pursuant to Federal Rule of Civil Procedure 54(d), Local Rule 54.1, and 28 U.S.C. § 1920 in the amount of $410, 556.93.[1] (Dkt. 727.) ISE objects to many of these costs, arguing that CBOE is entitled to no more than $40, 047.33. For the reasons that follow, CBOE's bill of costs will be awarded in an amount to be determined after CBOE submits additional materials as set forth in this Opinion and Order.

LEGAL STANDARD

Federal Rule of Civil Procedure 54(d) states that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party." Fed.R.Civ.P. 54(d). Pursuant to 28 U.S.C. § 1920,

A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(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 under section 1923 of this title;
(6) Compensation 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.

There is a "strong presumption" that the prevailing party will recover its costs under Rule 54(d). Contreras v. City of Chicago, 119 F.3d 1286, 1295 (7th Cir. 1997). The "party seeking an award of costs carries the burden of showing that the requested costs were necessarily incurred and reasonable." Trs. of the Chicago Plastering Inst. Pension Trust v. Cork Plastering Co., 570 F.3d 890, 906 (7th Cir. 2009). In determining whether to award costs against the losing party, the court must determine "(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). The decision to award costs is left to the discretion of the trial court. Northbrook Excess & Surplus Ins. Co. v. Proctor & Gamble Co., 924 F.2d 633, 642 (7th Cir. 1991).

ANALYSIS

I. Fees of the clerk and marshal - 28 U.S.C. § 1920(1)

CBOE seeks recovery of fees paid to the Clerk of the Court totaling $865.00 and fees for the service of subpoenas to third party witnesses totaling $880.00. (Dkt. 733, Ex. 11.) ISE does not object to the fees paid to the Clerk of Court and they will be awarded. As to the recovery of service fees, CBOE "may recover fees for service of process at the hourly rates charged by the United States Marshals Service for such service, " which was $55 per hour.[2] Claredon Nat'l Ins. Co. v. Medina, No. 8 C 4245, 2010 WL 3526515, at *1 (N.D. Ill. Sept. 1, 2010) (citing Collins v. Gorman, 96 F.3d 1057, 1060 (7th Cir. 1996); 28 C.F.R. § 0.114(a)(3)). Typically, when an invoice fails to reflect the time spent effectuating service, the court will award costs for one hour. See Claredon, 2010 WL 3526515, at *1; Davis v. Budz, No. 99 C 3009, 2011 WL 1303435, at *2 (N.D. Ill. Mar. 31, 2011). Because CBOE's invoices do not indicate the time spent effectuating it has revised its request to include $55 per service. (Dkt. 732 at 11-12.) This is reasonable. Finally, ISE objects to the recovery of $220, which CBOE incurred in serving subpoenas on various libraries in an attempt to document its prior art references. Although these subpoenas were served on the eve of trial, they were necessitated by ISE's refusal to stipulate to the admission of certain published books and journal articles, about which there did not appear to be a genuine dispute. ( See dkt. 733, Ex. 5.) As such, an award of these limited costs is reasonable. The court will award CBOE $1, 745 for Clerk and marshal fees.

II. Fees for court reporting and transcripts - 28 U.S.C. § 1920(2)

CBOE seeks a total of $68, 802.94 in transcript-related fees, including fees (1) for court reporter attendance at hearings and depositions; (2) for the original and one copy of deposition and hearing transcripts; (3) to obtain DVD copies of videotaped depositions; and (4) for video recording witness depositions. ( See dkt. 732 at 11; dkt. 733, Exs. 6 & 7.) Excluding the amount CBOE requests for court transcripts (discussed in Part II.D below), it seeks $62, 606.89 for deposition transcripts. ( See Dkt. 733, Exs. 6, 7.) ISE objects, arguing that CBOE is precluded from recovering any more than $26, 068.30, of which it allots $23, 772.45 to deposition costs. ( See Dkt. 731, Ex. A.) ISE protests that CBOE may not recover (1) expedited service fees; (2) shipping and handling fees; or (3) costs for both video recording and stenographic transcription.

A. Rate of reimbursement for deposition transcripts and court hearings

Under Local Rule 54.1(b), a prevailing party may recover the full cost of a transcript necessary for use in the case provided that the cost does 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. N.D.Ill. L.R. 54.1(b). A prevailing party is also entitled to recover "the cost of the original... transcript or deposition together with the cost of one copy each where needed by counsel and, for depositions, the copy provided to the court." Id. During the relevant time period, the Judicial Conference established the maximum transcript rates of $3.65 per page for an ordinary transcript and $0.90 for a copy to each party.[3] ISE does not object to the costs for the original and one copy of deposition and hearing transcripts or the cost of obtaining DVD copies of videotaped depositions, and these costs will be awarded. See Local Rule 54.1(b) ("[O]nly the cost of the original of such transcript or deposition together with the cost of one copy each where needed by counsel and, for depositions, the copy provided to the court shall be allowed."); LG Elecs. U.S.A., Inc. v. Whirlpool Corp., 08 C 0242, 2011 WL 5008425, at *3 (N.D. Ill. Oct. 20, 2011) (finding the costs to obtain copies of videotaped depositions was necessary because the witnesses ...


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