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Matz v. Household International Tax Reduction Investment Plan

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

June 12, 2014

ROBERT J. MATZ, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
v.
HOUSEHOLD INTERNATIONAL TAX REDUCTION INVESTMENT PLAN n/k/a HSBC-NORTH AMERICA (U.S.) TAX REDUCTION INVESTMENT PLAN, Defendant.

MEMORANDUM OPINION & ORDER

JOAN B. GOTTSCHALL, District Judge.

In 1996, Plaintiff Robert J. Matz brought this action on behalf of himself and similarly situated employees of Household International, Inc., who were participants in the Household International Tax Reduction Investment Plan. He alleged that the Plan violated the Employee Retirement Income Security Act of 1974 (ERISA) by failing to declare a "partial termination" of the Plan, which would have resulted in the full vesting of contributions made by Household to the individual accounts of the Plan participants. The court granted summary judgment in favor of the Plan on March 26, 2014. The Plan now seeks its costs incurred in connection with the lawsuit. Matz objects to the bill of costs, contending that the Plan does not adequately make a showing that the particular costs were reasonable and necessary. For the reasons stated below, the court awards costs in the amount of $63, 793.57.

I. LEGAL STANDARD

Fed. R. Civ. P. 54(d)(1) provides that "costs-other than attorney's fees-should be allowed to the prevailing party." Fed.R.Civ.P. 54(d)(1). Under 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. There is a "strong presumption" that the prevailing party should be allowed to recover its costs. Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 945 (7th Cir. 1997). 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).

Matz argues that any costs awarded are subject to the "substantially justified" standard provided in § 1132(g) of ERISA, citing Hakim v. Accenture United States Pension Plan, 901 F.Supp.2d 1045 (N.D. Ill. 2012). See 29 U.S.C. § 1132(g). Although the Hakim court found that assessment of costs is subject to § 1132(g), it ultimately decided that the "sensible approach" is to borrow the widely used standards provided in Fed.R.Civ.P. 54(d)(1) and 28 U.S.C. § 1920 because § 1132(g) does not conflict with those standards. Id. at 1054-55. The Seventh Circuit agreed that nothing in § 1132(g) is contrary to Rule 54(d), and thus, Rule 54(d) is the controlling standard for assessing costs. Leimkuehler v. Am. United Life Ins. Co., 713 F.3d 905, 915 (7th Cir. 2013).

II. ANALYSIS

A. Costs Related to Depositions and Exhibits

1. Deposition Testimony

The Plan seeks $2, 457.34 for deposition transcripts and a court reporter attendance fee. Matz argues that the Plan is not entitled to the cost of all twelve depositions because only seven of them were used in the Plan's summary judgment motion, and the Plan makes no showing of need for the remaining five. The Plan responds that the introduction of a deposition into a motion for summary judgment is not a prerequisite for finding that the depositions were necessary. See Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 455 (7th Cir. 1998).

The court awards costs for deposition transcripts if the deposition appears reasonably necessary in light of the facts known at the time of the deposition. Id. The Local Rules of the Northern District of Illinois provide that the cost of transcripts may not exceed the rate established by the Judicial Conference of the United States that was in effect at the time the transcript was filed. N.D.Ill. L.R. 54.1(b).

The court finds that the Plan can recover the costs of all the deposition transcripts. Matz noticed all the depositions, except for his own, and the parties have used all of them in proceedings in this litigation. See Lewis v. City of Chicago, No. 04 C 6050, 2012 WL 6720411, at *5 (N.D. Ill.Dec. 21, 2012) (holding that nine depositions not used in summary judgment documents were reasonably necessary).

The Plan seeks reimbursement for the deposition transcript of Kathleen Dempsey taken in 2002 at a rate of $0.83 per page, but the Judicial Conference set the 2002 maximum rate for transcript copies at $0.75 per page. See Se-Kure Controls, Inc. v. Vanguard Prods. Grp., 873 F.Supp.2d 939, 945 (N.D. Ill. 2012). Nevertheless, the court awards the Plan the full amount it requests for the deposition-$106.24, or $0.83 per page-because the rate does not exceed the highest allowable per-page rate ($3.00) for an original ordinary transcript. Id. (awarding Vanguard the cost for copies of transcripts at a rate of $1.10 per page because the rate does not exceed the highest maximum rate (in 2002) of $3.00 for an ordinary transcript).

The Plan also seeks $276 for an appearance fee in the deposition of Matz. Court reporter appearance fees are allowable in excess of the maximum per page amount, but may not exceed the published rates of $110 per half day (four hours or less) or $220 for a full day. See Maximum Transcript Rates (Jan. 26, 2012), http://www.ilnd.uscourts.gov/home/clerksoffice/ CLERKS_OFFICE/CrtReporter/trnscrpt.htm. The $276 appearance fee for six hours exceeds the maximum allowable rate and is reduced by $56 to $220. See SP Techs., LLC v. Garmin Int'l, Inc., No. 08 CV 3248, 2014 WL 300987, at *6 (N.D. Ill. Jan. 10, 2014) (reducing appearance fees of $238 for 7.5 hours and $350 for 10 hours, respectively, to $220). Thus, ...


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