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Oleksy v. General Electric Co.

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

December 12, 2016



          Jeffrey T. Gilbert, United States Magistrate Judge

         Plaintiff Henryk Oleksy ("Oleksy") sued Defendant General Electric Company ("GE") for patent infringement. On September 29, 2015, the presiding District Judge ruled that GE did not infringe on Oleksy's patent and, consequently, granted summary judgment in its favor. [ECF Nos. 717, 718]. After that, GE filed a bill of costs seeking $153, 700.73. [ECF No. 728-1]. Oleksy objected to the original bill of costs, and GE subsequently filed an amended bill of costs (the "Amended Bill of Costs") that slightly reduced the sought-after total to $150, 564.09. GE's Amended Bill of Costs, [ECF No. 754-3]. Oleksy then filed a sur-reply arguing that GE should recover only $74, 030.71. Plaintiffs Sur-Reply in Opposition to Defendant's Revised Bill of Costs ("Oleksy's Sur-Reply"), [ECF No. 766], at 15. After these filings, the District Judge referred GE's bill of costs to this Magistrate Judge. [ECF No. 767].

         For the reasons stated below, the Court grants in part and denies in part the Amended Bill of Costs, and awards $94, 813.95 in costs.


         Under Federal Rule of Civil Procedure 54(d), a court may award costs other than attorney's fees to a prevailing party as long as no federal statute, Federal Rule of Civil Procedure, or court order provides otherwise. Fed.R.Civ.P. 54(d)(1). To be awardable, a cost must satisfy two requirements. Majeske v. City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000). It must be taxable under a federal statute. Republic Tobacco Co. v. N. Atl. Trading Co., 481 F.3d 442, 450 (7th Cir. 2007). 28 U.S.C. § 1920, the relevant statute for this case, enumerates six categories of taxable fees:

(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees 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 under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

28 U.S.C. § 1920; see also Massuda v. Panda Express, Inc., 2014 WL 148723, at *5 (N.D. Ill. Jan. 15, 2014).

         A cost also must be "both reasonable and necessary to the litigation." Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir. 2008); see also Majeske, 218 F.3d at 824. The burden of showing that a cost was necessarily incurred and reasonable falls on the prevailing party. Trustees of Chicago Plastering Inst. Pension Trust v. Cork Plastering Co., 570 F.3d 890, 906 (7th Cir. 2009). Although there is a strong presumption that costs will be awarded, that presumption does not relieve the prevailing party of this burden. Life Plans, Inc. v. Sec. Life of Denver Ins. Co., 52 F.Supp.3d 893, 903 (N.D. Ill. 2014). Only after the prevailing party has satisfied its burden does the non-prevailing party "then bear[] the burden to affirmatively show that the taxed costs are not appropriate." Bonds v. Fizer, 69 F.Supp.3d 799, 803 (N.D. Ill. 2014). Ultimately, a court has broad discretion when deciding whether to award costs, and the Seventh Circuit gives "'virtually complete" deference" to a court's exercise of this discretion. In re Dairy Farmers of Am., Inc., 80 F.Supp.3d 838, 854 (N.D. Ill. 2015) (quoting O 'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 989 (7th Cir. 2001)).


         In the Amended Bill of Costs, GE breaks the costs that it seeks to recover into seven categories. The Court will address each in turn.

         A. Fees of the Clerk: $0.00 Awarded of $250.00 Requested

         In the Amended Bill of Costs, GE lists $250.00 as fees of the clerk. Amended Bill of Costs, [ECF No. 754-3], at 2. This amount is comprised of five payments of $50.00 to the Clerk of Court for the pro hac vice admission of five GE attorneys. [ECF No. 728-2]. GE contends that this expense is taxable under 28 U.S.C. § 1920(1). Oleksy objects to the entire $250.00 and asserts that § 1920(1) does not encompass pro hac vice admission fees.

         Section 1920(1) does not "specifically" address the issue presented by the parties' disagreement. Knauff v. Dorel Juvenile Grp., Inc., 2010 WL 2545424, at *1 (W.D. Tex. June 21, 2010). Instead, it provides that "fees of the clerk" are taxable. 28 U.S.C. § 1920(1). A circuit split has developed over whether this general language permits the award of pro hac vice fees. Compare Kalitta Air L.L.C. v. Cent. Texas Airborne Sys. Inc., 741 F.3d 955, 958 (9th Cir. 2013) with Craftsmen Limousine, Inc. v. Ford Motor Co., 579 F.3d 894, 898 (8th Cir. 2009).

         In the Seventh Circuit, there is at least some authority to support both sides of the split. A few district courts, with little or no analysis, have awarded pro hac vice fees. See, e.g., Horina v. City of Granite City, Illinois, 2007 WL 489212, at *2 (S.D. Ill. Feb. 9, 2007); Brita Wasser-Filter-Systeme GmbH v. Recovery Eng'g, Inc., 1999 WL 446830, at *3 (N.D. Ill. June 24, 1999). In one case, the court of appeals affirmed without any explanation such an award. United States v. Emergency Med. Associates of Illinois, Inc., 436 F.3d 726, 730 (7th Cir. 2006). The weight of authority in this Circuit, however, indicates that courts normally decline to award pro hac vice fees. See, e.g., Endotach LLC v. Cook Med. LLC, 2016 WL 912681, at *2 (S.D. Ind. Mar. 10, 2016); SP Techs., LLC v. Garmin Ini'l, Inc., 2014 WL 300987, at *1 (N.D. Ill. Jan. 10, 2014); Local 881 United Food & Commercial Workers Union v. Food Club of Indiana, 2011 WL 3501721, at *3 (N.D. Ind. Aug. 10, 2011); Nilssen v. Osram Sylvania, Inc., 2007 WL 257711, at *1 (N.D. Ill. Jan. 23, 2007), aff'd, 528 F.3d 1352 (Fed. Cir. 2008); Adler v. B.C. Ziegler & Co., 2006 WL 3771825, at *1 (E.D. Wis. Dec. 21, 2006); Abrams v. Van Kampen Funds, Inc., 2006 WL 452419, at *5 (N.D. Ill. Feb. 21, 2006); Liquid Dynamics Corp. v. Vaughan Co., 2002 WL 31207212, at *1 (N.D. Ill. Oct. 2, 2002); cf. Brown v. Colgate-Palmolive Co., 2006 WL 3197455, at *2 (S.D. Ind. May 17, 2006). This also is the practice of "the majority of courts" throughout the country. Awadv. Ziriax, 2014 WL 1572804, at »1 n.2 (W.D. Okla. Apr. 17, 2014).

         Consistent with this weight of authority, the Court will not award GE its .pro hac vice fees. Therefore, the Court will not award any of the $250.00 that GE lists as fees of the clerk in the Amended Bill of Costs.

         B. Fees for Service of Summons and Subpoenas: $655.00 Awarded of $2, 108.00 Requested

         In the Amended Bill of Costs, GE lists $2, 108.00 as fees for service of summons and subpoenas. Amended Bill of Costs, [ECF No. 754-3], at 2. The parties address this amount in two parts.

         1. Service of Summons Fees: $375.00 Awarded of $1, 436.00 Requested

         The main portion of the $2, 108.00 is $1, 436.00 that GE paid for service of summons. Defendant General Electric's Reply in Support of Its Bill of Costs ("GE's Reply"), [ECF No. 754], at 3; [ECF No. 728-3], at 3. This expense was incurred for seventeen attempts, all but one of which appears to have been successful, to serve various individuals and corporations. [ECF No. 728-3]. According to GE's summary list and invoices, GE paid, on a per attempt basis, (1) $35.00 for six attempts, (2) $85.00 for seven attempts, (3) $98.00 for two attempts, (4) $175.00 for one attempt, and (5) $260.00 for one attempt. Id. at 3, 11-17. GE argues that these fees are taxable under 28 U.S.C. § 1920(1) as fees of the marshal. Oleksy claims that GE's recovery should be limited to $440.00 for two reasons.

         Oleksy first argues that GE has not submitted the information necessary to support its request. Under 28 U.S.C. § 1920(1), fees for private process servers may be taxable when "their rates do not exceed the cost of service of process had the U.S. Marshal effectuated service of process." Thayer v. Chiczewski, 2010 WL 3087447, at *3 (N.D. Ill. Aug. 4, 2010). If a party seeks to recover private service fees without providing evidence of what hourly rate the private server charged, how much time he spent trying to serve process, or other information needed to determine if his rate exceeded that charged by the Marshal, then the appropriate practice is to award the lesser of the amount that the party actually paid and "the minimum charge of the U.S. Marshals." SP Techs., 2014 WL 300987, at *2; see also Small v. Ford Motor Co., 2015 WL 203178, at *2 (S.D. Fla. Jan. 14, 2015); Manson v. City of Chicago, 825 F.Supp.2d 952, 956 (N.D. Ill. 2011); Highway Commercial Servs., Inc. v. Midwest Trailer Repair, Inc., 2011 WL 3159128, at *3 (N.D. Ill. July 26, 2011); Serwatka v. City of Chicago, 2011 WL 2038725, at *3 (N.D. Ill. May 24, 2011); Perry v. City of Chicago, 2011 WL 612342, at *3 (N.D. Ill. Feb. 15, 2011); Vardon Golf Co. v. Karsten Mfg. Corp., 2003 WL 1720066, at *8 (N.D. Ill. Mar. 31, 2003).

         As stated above, the documentation that GE has submitted reflects only the amount that GE was charged. [ECF No. 728-3], at 11-17. Even after Oleksy noted this deficiency, GE did not supplement the record. Instead, in its reply brief, GE defended the position that it was entitled to a minimum of $55.00 for every attempt that cost more than that. GE's Reply, [ECF No. 754], at 1-2. Because the Court cannot determine the rate charged by GE's process servers, GE cannot recover more than $55, 00 for any attempt at service.[1]

         Oleksy also argues that GE should not recover any of the fees that it paid to serve people it did not depose. Oleksy represents that GE never deposed five people who it successfully served (one of them after two attempts), and that it did not depose one person that it successfully served twice in 2010 until after it served him again in 2013. Oleksy's Sur-Reply, [ECF No. 766], at 3. The only justification that GE provides for serving these people is the conclusory assertion that it needed "to insure the appearance of these witnesses at depositions and/or to secure the production of documents." Defendant General Electric's Memorandum of Law in Support of its Bill of Costs ("GE's Opening Brief), [ECF No. 728], at 3. Such a generalized statement does not permit the Court to assess the necessity and reasonableness of each challenged service and, thus, cannot support an award of fees. C.f. Moore v. Univ. of Notre Dame, 22 F.Supp.2d 896, 915 (N.D. Ind. 1998) ("As noted in Section 2 supra, these witnesses were never deposed. Accordingly, this expense [for service of process] is not allowable.").

         Therefore, the Court awards (1) $35.00 for the six services costing as much, (2) $55.00 for the attempt to serve ITC Experts, Inc. in March 2014 (which cost $175.00), and (3) $55.00 for each of the two attempts to serve Leon Edelson during 2013 (each of which cost $98.00). This is a total of $375.00.[2]

         2. Subpoena Fees: $280.00 Awarded of $627.00 Requested

         The other portion of the $2, 108.00 is $627.00 that GE paid seven witnesses-which GE calls "subpoena fees." GE's Reply, [ECF No. 754], at 3. GE paid these witnesses $96.00 each, $40.00 of which was for a daily appearance fee and the other $56.00 of which was for mileage costs. Oleksy does not dispute that GE is entitled to recover daily appearance costs. Instead, he objects only to the mileage costs.

         28 U.S.C. § 1920(3) provides for the recovery of fees for witnesses. This includes $40.00 daily appearance fees and reasonable travel expenses, both of which 28 U.S.C. § 1821(b) requires that witnesses be paid. Bova v. Harrison, 2013 WL 6169192, at *2 (S.D. Ill. Nov. 25, 2013). When a party does not provide evidence of its witnesses' travel costs, however, its recovery is limited to the daily appearance fee. See, e.g., Hall v. St. John Missionary Baptist Church, 2010 WL 1488120, at *1 (E.D. Ark. Apr. 13, 2010); Ulatowski v. John Sterling Corp., 2005 WL 643349, at *4 (N.D. Ill. Mar. 16, 2005); Haywood v. Evergreen Motor Cars, Inc., 2003 WL 22220121, at * 1 (N.D. Ill. Sept. 25, 2003); Fait v. Hummel, 2002 WL 31433424, at *3 (N.D. Ill. Oct. 30, 2002); Liquid Dynamics, 2002 WL 31207212, at *3.

         In this case, GE's invoices simply list a flat payment of $96.00, which is described as a "subpoena fee." [ECF No. 728-3], at 4-10. In its reply brief, GE says that this amount includes "$56 for [witnesses'] mileage costs ($0.56 per mile x approximately 50 miles in each direction." GE's Reply, [ECF No. 754], at 3. But GE neither has provided any evidence of witnesses' travel nor simply stated how much each witness actually (as opposed to "approximately") traveled. GE's general reference to "approximately" 100 miles indicates that GE may be rounding or averaging the distance traveled by the witnesses. Regardless of whether that is the case, GE has not given the Court an adequate basis to conclude that each witness' mileage costs were necessary and reasonable.

         Accordingly, the Court awards $280.00 for its subpoena fees.[3]

         In total, the Court awards $655.00 of the $2, 108.00 listed in the Amended Bill of Costs as fees for ...

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