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Capps v. Drake

United States District Court, S.D. Illinois

March 30, 2017

ISSAC W. CAPPS, Plaintiff,


          NANCY J. ROSENSTENGEL United States District Judge

         On 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).

         On 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).[1] 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, 189, 191).

         In 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.

         Legal Standard

         Federal 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.

         The 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.” Id.


         As an 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. § 1924.

         The 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.

         A. Costs Related to Depositions of Jon Graskewicz and Mark Woodsides

         Defendants 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.

         The 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.

         B. Background Report of and ...

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