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Acosta v. Target Corporation

United States District Court, N.D. Illinois, Eastern Division

April 18, 2014

RICHARD ACOSTA and JENIFER ROMAN, on behalf of themselves and others similarly situated, Plaintiffs,
TARGET CORPORATION, et al., Defendants.



For the reasons set out below, the plaintiffs' objections [293] to the defendants' bill of costs [290], which seeks a total of $8, 105.08, are sustained in part and overruled in part. The defendants may recover $2, 896.99 in costs ($8, 105.08 minus $5, 208.09).


Plaintiffs Richard Acosta and Jenifer Roman filed suit against Target Corporation and two of its affiliated entities, Target Receivables LLC and Target National Bank (collectively, "Target") based on Target's conversion of Target Guest Cards to Target Visa Cards. [Dkt 1.] On July 3, 2013, the district court granted Target's summary judgment motion and denied the plaintiffs' cross-motion for summary judgment and motion for class certification. Acosta v. Target Corp., No. 05 C 7068, 2013 WL 3456767 at *10 (N.D. Ill. July 3, 2013). Judgment was entered on July 3, 2013. [Dkt 283] That judgment was affirmed by the Court of Appeals on March 19, 2014. Acosta v. Target Corp., ___ F.3d ___, No. 13-2706, 2014 WL 1045202 (7th Cir. Mar. 19, 2014).

As the prevailing party, Target filed a Bill of Costs pursuant to 28 U.S.C. § 1920 and Fed.R.Civ.P. 54(d)(1), requesting taxable costs in the amount of $8, 105.08. (Def.'s Bill Costs at 1.) [Dkt 290.] The plaintiffs filed Objections to Target's Bill of Costs [dkt 293], and Target responded to the objections [dkt 299]. The District Judge referred the matter to this court for decision. [Dkt 300.] The plaintiffs were permitted to file a Reply in support of their Objections. [Dkt 303, 304.]

Standard of Review

Rule 54(d) (1) of the Federal Rules of Civil Procedure provides 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)(1). 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.

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 the burden of 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). The court has "considerable discretion" in determining whether particular costs are reasonable and necessary. Olivarius v. Tharaldson Prop. Mgt., Inc., No. 08 C 463, 2012 WL 1117468 *1 (N.D. Ill. Apr. 3, 2012).


Deposition Transcripts and Related Costs[1]

Target has requested a total of $4, 182.92 for transcripts of the depositions of the plaintiffs' and Target's witnesses. (Defs.' Bill Costs at 1.) The plaintiffs contend that Target should not be allowed to recover any costs associated with depositions. First, they argue that Target has failed to explain why the transcripts of their depositions were "necessarily obtained for use in the case" because Target did not "point[] to any information learned in the deposition of either Plaintiff that they did not already know or that was in dispute." (Pls.' Objections at 2-3.) Mr. Acosta and Ms. Roman were the named representatives of the putative class. It is not unreasonable that Target would seek their depositions. Moreover, Target's summary judgment submissions relied on the plaintiffs' depositions, and the district court considered the depositions when resolving the parties' cross-motions for summary judgment. Acosta, 2013 WL 3456767 at *10. The plaintiffs' objection to this cost is overruled.

Second, the plaintiffs object to Target's claim for the costs of obtaining the transcripts of the depositions of the three Target employees that plaintiff deposed. It was reasonable for Target to obtain copies of these deposition transcripts. As the plaintiffs acknowledge, the plaintiffs' counsel conducted a "thorough examination of [these] witnesses regarding a program that had ceased roughly five years earlier." (Pls.' Reply at 2.) This objection is overruled.

Third, the plaintiffs assert that Target's claimed rate of $2.85 per page for copies of the deposition transcripts for Target's deponents exceeds the allowable per page rate of.90¢. (Pls.' Objections at 3.) This objection is unopposed (Defs.' Resp. at 9), and Target's costs are reduced by $1, 051.05 ($2.85 minus.90¢ multiplied by 539 pages).

Fourth, the plaintiffs challenge a $120 charge by the court reporter resulting from a last minute cancellation of Mr. Acosta's February 28, 2011 deposition. (Defs.' Bill of Costs at 3; Pls.' Objections at 3.) Apparently, on the morning set for his deposition (after some rescheduling at Target's request), Mr. Acosta asked Target to reschedule his deposition, resulting in a cancellation charge from the reporting service. (Pls.' Reply, Exs. A, B.) Mr. Acosta cancelled his deposition for personal reasons; it is reasonable that the plaintiffs, rather than Target, pay any associated cancellation fee. See Real Colors, Inc. v. Patel, No. 96 C 6098, 1998 WL 88879 at *1 (N.D. Ill. Feb. 17, 1998) ...

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