United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Brandon Stollings brought this product liability suit against Ryobi Technologies and One World Technologies (together, "Ryobi") after being injured while using a Ryobi-brand table saw. A jury returned a defense verdict, but the Seventh Circuit vacated the judgment and remanded the case for retrial. 725 F.3d 753 (7th Cir. 2013). Stollings prevailed at the second trial, and the court entered judgment for Stollings in the amount of $1, 250, 000.00 consistent with the jury's verdict. Docs. 552-553. Pursuant to Federal Rule of Civil Procedure 54(d)(1), Stollings filed a bill of costs seeking $143, 371.51 under 28 U.S.C. § 1920. Doc. 574. Ryobi filed an opposition, and Stollings filed a reply. Docs. 583, 586. For the following reasons, the court awards Stollings $47, 724.42 in taxable costs under § 1920.
Rule 54(d)(1) provides, in relevant part: "Unless 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). A court awarding costs must ask first "whether the cost imposed on the losing party is recoverable" under § 1920 and, "if so, whether the amount assessed for that item was reasonable." Majeske v. City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000). Recoverable costs include (1) "[f]ees of the clerk and marshal"; (2) fees for transcripts "necessarily obtained for use in the case"; (3) "[f]ees and disbursements for printing and witnesses"; (4) "[f]ees 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; and (6) "[c]ompensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services." 28 U.S.C. § 1920. "Although a district court has discretion when awarding costs, the discretion is narrowly confined because of the strong presumption created by Rule 54(d)(1) that the prevailing party will recover costs." Contreras v. City of Chicago, 119 F.3d 1286, 1295 (7th Cir. 1997) (internal quotation marks and citation omitted).
Ryobi objects to numerous items from Stollings's bill. Doc. 583 at 25 (summarizing the objections). Stollings's reply does not address, let alone dispute, the following objections:
(1) $3, 917.16 for printing costs from the first trial;
(2) $52, 976.75 for exemplification and copying costs from the first trial;
(3) $7, 040.56 for expert witness travel costs from the first trial; and
(4) $3, 335 for storage costs from the first trial.
Stollings also concedes that portions of several items in his bill are not recoverable and-what amounts to the same thing-agrees to scale back his requests for certain other items. Doc. 586 at 4, 10. By admitting, either affirmatively or by failing to argue the point, that these costs are not recoverable, Stollings has forfeited any claim he might otherwise have had to their recovery. See Trs. of the Chi. Plastering Inst. Pension Trust v. Cork Plastering Co., 570 F.3d 890, 906 (7th Cir. 2009) ("Any party seeking an award of costs carries the burden of showing that the requested costs were necessarily incurred and reasonable.").
The court now turns to those matters on which the parties have joined issue.
I. Whether Stollings May Recover Any Costs from the First Trial
Ryobi contends that Stollings cannot recover any costs incurred in connection with the first trial. Doc. 583 at 10-11. Ryobi advances two grounds for this contention: (1) Stollings was a prevailing party only with respect to the second trial; and (2) Stollings is bound by the law of the case because he unsuccessfully sought in an earlier sanctions motion his costs from the first trial. Both arguments fail to persuade.
A party who prevails at a second trial after successfully appealing an unfavorable verdict at the first trial generally is considered a prevailing party with respect to the first trial as well as the second trial, and thus "usually is awarded the costs of both trials." 10 Wright & Miller, Federal Practice and Procedure § 2667, at 206-07 (3d ed. 1998); see Delano v. Kitch, 663 F.2d 990, 1001 (10th Cir. 1981); Superturf, Inc. v. Monsanto Co., 660 F.2d 1275, 1288 (8th Cir. 1981); Givens v. Lederle, 556 F.2d 1341, 1346 (5th Cir. 1977); Vigortone Ag Prods., Inc. v. PM Ag Prods., Inc., 2004 WL 1899882, at *9 (N.D. Ill. Aug. 12, 2004). As the Seventh Circuit has explained, "when two trials are required to achieve the ultimate result, a plaintiff should be compensated for both trials, as long as the time spent at both was reasonably expended." Shott v. Rush-Presbyterian-St. Luke's Med. Ctr., 338 F.3d 736, 739 (7th Cir. 2003) (internal quotation marks omitted). Shott concerned attorney fees, not costs, but the distinction is immaterial for present purposes.
Ryobi also is wrong to invoke the law of the case doctrine, which "precludes reexamining a previous ruling... in the same case unless it was manifestly erroneous." Starcon Int'l, Inc. v. Int'l Bhd. of Boilermakers, 450 F.3d 276, 278 (7th Cir. 2006). Ryobi's argument arises from a 28 U.S.C. § 1927 sanctions motion that Stollings filed against Ryobi's counsel before the second trial. Doc. 403. The motion followed in the wake of the Seventh Circuit's ruling that, during the first trial, Ryobi's counsel had improperly introduced a particular newspaper article into evidence and had improperly told the jury that Stollings's counsel and Dr. Stephen Gass, one of Stollings's expert witnesses, had collaborated to sue Ryobi as part of a "joint venture" to force table saw manufacturers to license Gass's safety technology. 725 F.3d at 760-63. Stollings sought to sanction Ryobi's counsel under § 1927 for this improper conduct and requested, among other things, the costs he incurred in connection with the first trial. Doc. 403 at 11. The court denied the sanctions motion in an oral ruling. Doc. 416.
The denial of Stollings's sanctions motion has nothing to do with his bill of costs because the standard governing a § 1927 motion is completely different from the standard governing costs under Rule 54(d)(1). The costs inquiry asks whether the movant is a prevailing party and whether his requested costs are reasonable, while a § 1927 motion asks whether "counsel acted recklessly, ... raised baseless claims despite notice of the frivolous nature of these claims, or... otherwise showed indifference to statutes, rules, or court orders." Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 799 (7th Cir. 2013) (internal quotation marks omitted). The law of the case doctrine does not apply here because the court in denying Stollings's § 1927 motion did not speak at all to his entitlement to costs as a prevailing party under Rule 54(d)(1). See Kovacs v. United States, 739 F.3d 1020, 1024 (7th Cir. 2014) ("The law-of-the-case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.") (internal quotation marks omitted).
That said, it is ironic that Ryobi relies on the court's denial of § 1927 sanctions after the first trial given what transpired during the second trial. The court denied the sanctions motion in part because Stollings himself had included the offending newspaper article in one of his proposed exhibits and, more significantly, because Ryobi's counsel's statements, while improper, did not rise to the level of impropriety required for § 1927 sanctions. Ryobi did not seem to take that determination to heart, however, for during the second trial it persisted in the same conduct that the Seventh Circuit had clearly and unequivocally held improper.
The first two pages of Ryobi's opposition to Stollings's sanctions motion essentially argued that the Seventh Circuit had erred in reversing. Doc. 412 at 1-2. The undersigned judge informed Ryobi that this particular argument was wrong and inappropriate. Doc. 413 (a final transcript was not prepared for this status hearing). Next, at a motion in limine hearing before the second trial, Ryobi argued that the court should admit the very newspaper article that the Seventh Circuit held had been improperly admitted at the first trial. 8/25/2014 Tr. (Doc. 91) at 77-88. Again the court reminded Ryobi of the Seventh Circuit's clear holding and directions for the retrial. Id. at 89 ("The Seventh Circuit said on page 13 of the slip opinion, after talking about all the many ways in which the article was not good evidence, ... The judge should have excluded the article.' I don't think there's ...