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Maremont v. Susan Fredman Design Group, Ltd.

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

February 13, 2015

JILL E. MAREMONT, Plaintiff,
v.
SUSAN FREDMAN DESIGN GROUP, LTD. and SUSAN FREDMAN, Defendants.

OPINION AND ORDER

SARA L. ELLIS, District Judge.

After a jury trial, the jury returned a verdict in favor of Defendants Susan Fredman Design Group, Ltd. ("SFDG") and Susan Fredman on Plaintiff Jill Maremont's Stored Communications Act claims. Judgment was entered for Defendants on October 10, 2014. On October 24, 2014, Defendants filed a Bill of Costs, seeking $8, 473.65, with that amount mainly comprised of transcript and exemplification fees. Maremont filed objections to Defendants' Bill of Costs on November 12, 2014, arguing that the requested fees should be denied or significantly reduced. She also argues that the award of costs should be stayed pending resolution of her motion for new trial and possible appeal. Having reviewed the parties' submissions, the Court taxes costs in favor of Defendants and against Maremont in the amount of $4, 401.14.

LEGAL STANDARD

Federal Rule of Civil Procedure 54(d) states that unless a federal statute, the Federal Rules, or the Court provide otherwise, costs should be allowed to the prevailing party in litigation. Pursuant to 28 U.S.C. § 1920, the Court may tax as costs certain fees, including fees for service of summons and subpoenas, fees for "transcripts necessarily obtained for use in the case, " and fees for "exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." The prevailing party is presumptively entitled to costs. Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir. 2005). The prevailing party maintains the burden of establishing that the potentially recoverable costs it incurred were reasonable and necessary. Trs. of Chi. Plastering Inst. Pension Trust v. Cork Plastering Co., 570 F.3d 890, 906 (7th Cir. 2009). If that burden is satisfied, the losing party bears the burden of showing that the costs are inappropriate. Beamon, 411 F.3d at 864. The Court enjoys "wide discretion in determining and awarding reasonable costs." Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 642 (7th Cir. 1991).

ANALYSIS

I. Maremont's Request for a Stay

Initially, Maremont asks the Court to stay the award of costs until her motion for a new trial and possible appeal are resolved. As the Court is issuing an Order denying her motion for a new trial concurrent with this Order, the request for a stay on that front is moot. As for Maremont's argument that the Court's resources would be conserved by not ruling on the Bill of Costs until after a potential appeal is resolved, that "is the case in any situation in which a party moves for costs after obtaining a judgment that the opposing party appeals." In re Text Messaging Antitrust Litig., No. 08 C 7082, 2014 WL 4343286, at *1 (N.D. Ill. Sept. 2, 2014). The better course of action here is to resolve the disputes over Defendants' Bill of Costs, so that, if Maremont does choose to appeal, any potential appeal from this Order may be consolidated with the appeal on the merits. Id.; see also Dishman v. Cleary, 279 F.R.D. 460, 465 (N.D. Ill. 2012) (collecting cases where award of costs entered even while substantive appeal was pending, noting that doing so may avoid piecemeal appeals). Although some courts have stayed enforcement of the award of costs until resolution of an appeal, see In re Text Messaging, 2014 WL 4343286, at *1, the Court declines to do so here, as Maremont has not shown a likelihood of success on appeal or any other justification to warrant delaying enforcement of the cost award. Kristofek v. Vill. of Orland Hills, No. 11 C 7455, 2014 WL 7145543, at *4 (N.D. Ill.Dec. 15, 2014) (refusing to stay enforcement of award of costs because plaintiff had "not shown a likelihood of success on the merits of his appeal or presented sufficient justification to warrant any delay in the enforcement of the award of costs").

II. Maremont's Request that Costs Not Be Taxed Due to Defendants' Litigation Conduct

Maremont argues that the Court should decline to award Defendants any costs because of their alleged vexatious conduct during the litigation and their alleged failure to follow the local rules. Although the Court retains discretion in awarding costs, "[t]he presumption in favor of awarding costs to the prevailing party is difficult to overcome, and the district court's discretion is narrowly confined." Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 945 (7th Cir. 1997). "Generally, only misconduct by the prevailing party worthy of a penalty or the losing party's inability to pay will suffice to justify denying costs." Id. But no such circumstances are present here; Defendants did not engage in any sanctionable misconduct that would warrant denying them costs as the prevailing party in the litigation. Therefore, the Court will proceed to consider Maremont's objections to the specific costs Defendants have requested.

III. Witness Fees

First, Defendants seek $100 for the attendance of two of its witnesses at trial. Although Defendants have listed this amount as a fee for service of summons and subpoena, it is more appropriately characterized as a witness fee, as the submitted documentation indicates that the requested amounts were tendered as the fee for the attendance of each witness at one day of trial. See Doc. 244 at 5, 9. Section 1820(b) provides that witnesses are entitled to an attendance fee of $40 per day for each day's attendance at trial. 28 U.S.C. § 1821(b). Defendants submitted checks indicating that each witness was paid a $50 witness fee, which may also account for mileage costs in traveling to and from the courthouse. Although a witness may also be compensated for mileage costs if traveling by privately owned vehicle, see 28 U.S.C. § 1821(c)(2), because Defendants have not submitted any documentation to allow the Court to determine the mode of transportation or the distance traveled by Ms. Shelven or Ms. Belmonti to testify at trial, the Court will only award the $40 attendance fee per witness. Cf. CSC by Bryant v. United States, No. 10-0910-DRH, 2010 WL 321354, at *2 (S.D. Ill. Jan. 29, 2014) (using mileage amounts contained in government's objection to determine mileage fees to which plaintiffs were entitled). Thus, Defendants are awarded $80 in witness fees.

IV. Transcript Fees

Second, Defendants seek $6, 587.81 in transcript costs. Section 1920(2) allows Defendants to recover fees for transcripts that were necessarily obtained for use in the case, but the recoverable cost is limited to the regular copy rate established by the Judicial Conference of the United States that was in effect at the time the transcript or deposition was filed unless another rate was previously provided for by order of the Court. N.D.Ill. L.R. 54.1(b). The regular copy rate is $3.65 per page for an original transcript and $4.85 for an expedited transcript. See Maximum Transcript Rates, http://www.ilnd.uscourts.gov/home/clerksoffice/CLERKS_OFFICE/CrtReporter/trnscrpt.htm.

Maremont objects that Defendants' requests for transcript fees are above the allowed rates and that Defendants should not be allowed to recover the costs for videotaping the depositions. Maremont also contends that Defendants should not recover any costs associated with Dr. Henry Conroe's deposition as Dr. Conroe was Defendants' own expert whose deposition was only taken ...


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