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Curtis v. Costco Wholesale Corporation

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

May 12, 2015

KEITH CURTIS, Plaintiff,



This matter is before the court on Defendant Costco Wholesale Corporation's (Costco) and Defendant Gail Hinds' (Hinds) bill of costs. For the reasons stated below, the bill of costs is granted in part and denied in part.


Plaintiff Keith Curtis (Curtis) brought the instant action and included in his complaint a claim alleging discrimination because of an alleged disability in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. (Count I), an ADA failure-to-accommodate claim (Count I), a retaliation claim brought under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et seq. (Count II), and a FMLA interference claim (Count II). On September 24, 2014, this court granted Defendants' motion for summary judgment on all counts. Defendants now move to recover costs pursuant to Federal Rule of Civil Procedure 54(d) (Rule 54(d)). Curtis objects to the bills of costs.


Rule 54(d) provides that the prevailing party shall be allowed to recover costs other than attorneys' fees as a matter of course, unless a statute or other rule states otherwise or the court specifically disallows such costs. Fed.R.Civ.P. 54(d); see also 28 U.S.C. § 1920 (setting forth costs that are generally recoverable). The Seventh Circuit has made it clear that in reviewing a bill of costs, the district court should keep in mind that "[t]here 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). In addition to making sure that the requested costs are recoverable, a district court must also ensure that the costs are reasonable and "necessary to the litigation...." Little v. Mitsubishi Motors North America, Inc., 514 F.3d 699, 702 (7th Cir. 2008); see also Majeske v. City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000)(referring to recoverable and reasonable considerations and to the "heavy presumption in favor of awarding costs").


Defendants request an award of $8, 013.20 for costs. (Mem. 1-3). Curtis objects and argues that the costs should be denied or reduced because he is indigent and the costs are unreasonable. (Resp. 1-10). In the alternative, Curtis requests that the court stay the proceedings or the enforcement of the award pending the outcome of his appeal. (Resp. 10).

I. Financial Hardship

Curtis argues that the court should deny Defendants' bill of costs because he is indigent and the costs would place an undue hardship upon him and his family. (Resp. 4-6). Defendants argue that Curtis has failed to establish that he is indigent. (Reply 3-4). In determining whether to award costs, a court can consider whether such award will cause an exceptional financial hardship to the non-prevailing party. Rivera v. City of Chi., 469 F.3d 631, 635 (7th Cir. 2006); Jones v. Chicago Bd. of Educ., 2013 WL 2422653, at *1 (N.D. Ill. 2013). However, to establish indigence a non-prevailing party must present evidence that they are incapable of paying the costs at this time or in the future. See Rivera, 469 F.3d at 635 (stating that "[t]he burden is on the losing party to provide the district court with sufficient documentation to support such a finding"). Documentation, such as an affidavit, should include evidence of both the individual's "income and assets, as well as a schedule of expenses." Id. Curtis has submitted a one-page signed declaration (Declaration) which does not list his specific income or assets. (Decl. 1). Further, instead of including a schedule of expenses in his Declaration, Curtis merely states that his family's monthly income is $650.00 less than their unnamed expenses. (Decl. 1). Thus, Curtis has presented insufficient evidence concerning his income, assets, and expenses. See id. ("[r]equiring a non-prevailing party to provide information about both income/assets and expenses will ensure that district courts have clear proof of the non-prevailing party's dire financial circumstances"). Accordingly, Curtis has failed to establish that he is indigent and incapable of paying the court-imposed costs in this case.

II. Deposition Transcripts and Copies

Defendants seeks to recover a total of $7, 284.60 for court transcript costs relating to the depositions of Hinds, Janet Jalowiec (Jalowiec), Leslie Engram (Engram), Karen Youngsma (Youngsma), Paul Michon (Michon), Andrew Leachman (Leachman), and Curtis. (Ex. A). Defendants also seek to recover $728.60 for costs for exemplification and for making copies of documents in this case. (Ex. B). Curtis argues in a conclusory fashion that such costs should be denied outright in their entirety because Defendants have failed to establish that such costs were reasonable, necessary, or recoverable under the law. (Resp. 3-4).

There is a presumption that a court should award recoverable costs that are "reasonable and necessary." Deimer v. Cincinnati Sub-Zero Products, Inc., 58 F.3d 341, 345 (7th Cir. 1995)(stating that "district courts enjoy wide latitude in determining and awarding reasonable costs"); see also Jones v. Chicago Bd. of Educ., 2013 WL 2422653, at *1 (N.D. Ill. 2013)(stating that "[t]here exists a strong presumption that the prevailing party may recover reasonable and necessary litigation costs from the losing party"); Life Plans, Inc. v. Security Life of Denver Insurance Company, 2014 WL 2879881, at *2 (N.D. Ill. 2014)(stating that the presumption in favor of awarding costs "does not, however, relieve the prevailing party of the burden of establishing that potentially recoverable costs it incurred were reasonable and necessary"); Interclaim Holdings Ltd. v. Ness, Motley, Loadholt, ...

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