United States District Court, S.D. Illinois
ISSAC W. CAPPS, Plaintiff,
KEVIN DRAKE, JARED FREEMAN, SHAWN ISAACS, JAMES TROGOLO, KEVIN ROYE, and BRICE SHAFFER, Defendants.
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge
February 1, 2016, a jury found in favor of Plaintiff Isaac
Capps on his claim of excessive force against Defendants
James Trogolo and Kevin Roye and on his claim of failure to
intervene against all Defendants (Doc. 171). The jury awarded
Plaintiff compensatory damages of $22, 000 and punitive
damages of $5, 000 against Defendant Trogolo, $5, 000 against
Defendant Roye, and $23 each against Defendants Drake,
Freeman, Isaacs, and Shaffer (Id.). The Clerk
entered Judgment on February 4, 2016 (Doc. 177).
February 12, 2016, Plaintiff filed a Bill of Costs, seeking a
total of $7, 424.07 in costs including the court filing fee,
service and subpoena fees, court reporter fees, fees for
copies of medical records and photos used at trial, hotel
costs incurred for various depositions, mandatory court
settlement conferences, and trial, and fees for reservation
of a library room where depositions were taken (Doc.
179). All Defendants objected, taking issue with
specific items in the Bill of Costs and asking the Court to
reduce the amount of costs awarded (see Docs. 188,
response, Plaintiff acknowledges that hotel costs are not
recoverable under 28 U.S.C. § 1920 and has agreed to
withdraw the $2, 250.52 in hotel fees from the Bill of Costs.
Because those fees were related to the litigation and
necessarily incurred, however, Plaintiff seeks to add the
hotel fees to the request for attorney fees under 42 U.S.C.
§ 1988. Plaintiff similarly defends the remainder of the
submitted costs as authorized and “necessarily
incurred” in this case.
Rule of Civil Procedure 54(d)(1) authorizes federal district
courts to award costs to prevailing parties in lawsuits.
See Fed. R. Civ. P. 54(d)(1) (“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.”). Specifically, the
recoverable costs include: (1) fees of the clerk and marshal;
(2) fees for printed or electronically recorded transcripts;
(3) fees and disbursements for printing and witnesses; (4)
fees for exemplification and the costs of making copies; (5)
docket fees under Section 1923; and (6) compensation of court
appointed experts, interpreters, and costs of special
interpretation services under section 1828 of this title. 28
U.S.C. § 1920.
Seventh Circuit has noted that the rule provides a
“presumption that the losing party will pay costs but
grants the court discretion to direct otherwise.”
Rivera v. City of Chicago, 469 F.3d 631, 634 (7th
Cir. 2006). “The presumption in favor of awarding costs
to the prevailing party is difficult to overcome, and the
district court's discretion is narrowly confined-the
court must award costs unless it states good reasons for
denying them.” Weeks v. Samsung Heavy Indus. Co.,
Ltd., 126 F.3d 926, 945 (7th Cir. 1997) (citing
Congregation of the Passion, Holy Cross Province v.
Touche, Ross & Co., 954 F.2d 219, 222 (7th Cir.
1988)). “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.”
initial matter, Defendants Drake, Freeman, and Isaacs argue
that Plaintiff failed to verify his claimed costs by
attaching an affidavit attesting that the costs are correct
and were necessarily incurred, as required by 28 U.S.C.
§ 1924; consequently, the Bill of Costs should be
rejected in its entirety. In response, Plaintiff argues that
a separate affidavit is not required because the Bill of
Costs form provided by the Court (see Doc. 179)
contains a declaration mirroring the language of 28 U.S.C.
Court agrees with Plaintiff and finds the declaration
provided by counsel on the Bill of Costs form is sufficient.
Counsel declared that the costs are “correct and
necessarily incurred” and were “actually and
necessarily performed.” Counsel signed the declaration
under penalty of perjury. Because the requirements of 28
U.S.C. § 1924 have been met, the Bill of Costs will not
be denied in its entirety.
Costs Related to Depositions of Jon Graskewicz and Mark
Drake, Freeman, and Isaacs object to Plaintiff's request
for reimbursement for the cost of depositions taken of Jon
Graskewicz and Mark Woodsides, as well as subpoena fees and
mileage for these two individuals. Defendants assert that
Plaintiff is only entitled to deposition fees when used at
trial and, in the court's discretion, when reasonably
necessary to the case-not for depositions that are purely
investigative in nature. Defendants cite Local Rule 54.2(6),
which in turn cites 28 U.S.C. § 1920 (2), (3), and (6).
Because Graskewicz and Woodsides were not witnesses at trial
and their depositions-according to Defendants-were purely
investigative, Plaintiff's costs should be reduced by
$248.75 for the transcripts of these depositions and $103 for
witness fees. In response, Plaintiff argues that these
deponents were officers who participated in the arrest of
Plaintiff, their depositions were vital to preparing for the
direct examination of another witness at trial, and their
testimony was used in both Plaintiff's and
Defendants' summary judgment papers. As such, they were
necessarily obtained for use in the case, and reimbursement
of that cost is authorized by 28 U.S.C. § 1920.
Court agrees with Plaintiff that these deposition costs are
reimbursable. It is well established in the Seventh Circuit
that “the expenses of discovery depositions shown to be
reasonably necessary to the case are recoverable even if the
depositions are not used as evidence at trial.”
State of Ill. v. Sangamo Const. Co., 657 F.2d 855,
867 (7th Cir. 1981). Even the case cited by Defendants
acknowledges that the “introduction of a deposition at
trial is not a prerequisite for finding that it was necessary
to take the deposition.” Hudson v. Nabisco Brands,
Inc., 758 F.2d 1237, 1243 (7th Cir. 1985), overruled
on other grounds by Provident Bank v. Manor Steel Corp.,
882 F.2d 258 (7th Cir. 1989). The Seventh Circuit in that
case further noted that “[e]ven the costs related to
discovery depositions may be assessed, provided that the
deposition is not . . . purely investigative in nature . . .
.” Id. (internal citation omitted). Given that
the deposition transcripts of Graskewicz and Woodsides were
attached as exhibits to Defendants' motion for summary
judgment, the Court cannot say that these depositions were
merely investigatory in nature. Plaintiff is allowed these
costs, and the objection is overruled.
Background Report of and ...