United States District Court, N.D. Illinois, Eastern Division
THE SURGERY CENTER at 900 NORTH MICHIGAN AVENUE, LLC, Plaintiff,
AMERICAN PHYSICIANS ASSURANCE CORPORATION, INC., and AMERICAN PHYSICIANS CAPITAL, INC., Defendants.
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN UNITED STATES DISTRICT JUDGE
pending before the Court is defendants' Motion for
Approval of Bill of Costs and Order Directing Plaintiff to
Tender Payment . For the reasons discussed below, the
Court grants defendants' motion in part, denies it in
part, and orders plaintiff The Surgery Center at 900 North
Michigan Avenue, LLC (“TSC”) to pay
defendants' costs in the amount of $16, 569.80.
brought this action asserting claims of bad faith and breach
of fiduciary duties. The case proceeded to trial in June
2018. At the close of TSC's case, the Court granted
defendants' motion for judgment as a matter of law under
Federal Rule of Civil Procedure 50(a). On June 26, 2018,
judgment was entered dismissing this case in its entirety.
The judgment form included three options to indicate how
judgment was being entered, including one stating that
judgment was entered in favor of defendants and that
“Defendant(s) shall recover costs from
plaintiff.” That choice was not indicated. Instead the
“other” option was checked, which stated that
judgment was entered in favor of defendants but did not
mention costs. (Dkt. 337.) TSC appealed the Court's
decision granting the Rule 50(a) motion, and in April 2019,
the Seventh Circuit affirmed. Surgery Ctr. at 900 N.
Mich. Ave., LLC v. Am. Physicians Assurance Corp., Inc.,
922 F.3d 778, 787 (7th Cir. 2019).
had filed a timely Bill of Costs on July 25, 2018. (Dkt.
340.) In May 2019, after the Seventh Circuit issued its
mandate, defendants filed the instant motion seeking approval
of the Bill of Costs and requesting an order directing TSC to
tender payment. TSC objects to the motion and the Bill of
Costs, arguing that the judgment denied costs to defendants
and that this purported denial was affirmed by the Seventh
Circuit, thus depriving the Court of jurisdiction to award or
tax costs. Alternatively, TSC argues that-should the Court
determine that defendants are entitled to costs-it should
only award costs that were associated with the appeal.
Federal Rule of Civil Procedure 54(d)(1), “costs . . .
should be allowed to the prevailing party.” Rule
54(d)(1) “provides a presumption that the losing party
will pay costs but grants the court discretion to direct
otherwise.” Rivera v. City of Chi., 469 F.3d
631, 634 (7th Cir. 2006). However, the Seventh Circuit
recognizes “only two situations in which the denial of
costs might be warranted: the first involves misconduct of
the party seeking costs, and the second involves a pragmatic
exercise of discretion to deny or reduce a costs order if the
losing party is indigent.” Mother & Father v.
Cassidy, 338 F.3d 704, 708 (7th Cir. 2003). A court
awarding costs asks “whether the cost imposed on the
losing party is recoverable” and “if so, whether
the amount assessed for that item was reasonable.”
Majeske v. City of Chi., 218 F.3d 816, 824 (7th Cir.
2000). Recoverable costs include: (1) clerk and marshal fees,
(2) transcript fees, (3) witness fees and expenses, (4) fees
for copies of papers necessarily obtained for use in the
case, (5) docket fees, and (6) compensation for
court-appointed experts and interpreters. See Republic
Tobacco Co. v. N. Atl. Trading Co., Inc., 481 F.3d 442,
447 (7th Cir. 2007) (citing 28 U.S.C. § 1920).
Court has carefully considered the parties' arguments and
finds that defendants-as the prevailing parties-are entitled
to costs. Viewed in the context of the case history, the
Court is of the opinion that it intended to award costs to
defendants when it directed verdict in their favor,
notwithstanding the box checked on the judgment indicating
otherwise. The box checked on the judgment was a clerical
error and was not meant to expressly deny costs to
defendants. Contemporaneously with this memorandum opinion
and order, the Court will enter an amended judgment to
correct the clerical mistake by checking the box to state
that defendants shall recover costs. See Fed. R.
Civ. P. 60(a) (“The court may correct a clerical
mistake or a mistake arising from oversight or omission
whenever one is found in a judgment, order, or other part of
the record. The court may do so on motion or on its own, with
or without notice.”); see also Shuffle Tech
Int'l, LLC v. Wolff Gaming, Inc., 757 F.3d 708, 711
(7th Cir. 2014) (a correction authorized by Rule 60(a) may be
made at any time-even years after the original judgment).
to the costs requested, defendants seek $100 in clerk fees.
These fees are taxable expenses contemplated by 28 U.S.C.
§ 1920, Weeks v. Samsung Heavy Indus. Co., 126
F.3d 926, 945 (7th Cir. 1997), and the Court orders TSC to
pay defendants clerk fees in the amount of $100.00.
also seek $20, 411.90 in transcript fees, including $1,
201.20 for hearing transcripts, $12, 380.70 for deposition
transcripts, and $6, 830 for trial transcripts. TSC contends
that the Court should award only the costs for the
transcripts associated with the appeal, i.e. the trial
transcripts. TSC further argues that the amount defendants
claim for the trial transcripts exceeds the regular per page
rates, that defendants provided no evidence or argument that
the hearing and deposition transcripts were reasonably
necessary to the litigation, and that defendants are not
entitled to costs associated with reproduction of deposition
costs associated with transcripts and copies are recoverable
where they are “necessarily obtained” for use in
the case. See 28 U.S.C. §§ 1920(2), (4).
Whether a cost is necessary must be made in light of the
facts known at the time of the deposition. Mother &
Father, 338 F.3d at 712. The “transcripts need not
be absolutely indispensable in order to provide the basis of
an award of costs; it is enough that they are reasonably
necessary.” Sanglap v. LaSalle Bank, 194
F.Supp.2d 798, 802-03 (N.D. Ill. 2002) (internal quotations
and citation omitted). In addition, “courts in this
district have concluded that [costs associated with
transcript indexes and exhibits] are recoverable because both
indexes and exhibits are essential to understanding the
content of a deposition, especially in a complex and heavily
litigated case.” LG Elecs. U.S.A., Inc. v.
Whirlpool Corp., 2011 WL 5008425, at *2 (N.D. Ill. Oct.
20, 2011) (St. Eve, J.).
have submitted invoices for the transcripts of 15
depositions, explaining that 11 of these depositions were
taken pursuant to TSC's notice or subpoena; that three
depositions were of plaintiff's expert witnesses and were
critical to defendants' summary judgment motion, for
motions in limine, and for purposes of impeachment during
trial; and that one of the depositions was of a TSC owner and
board member. These explanations are sufficient to satisfy
the Court that these transcripts were reasonably necessary in
light of the facts known to defendants at the time of the
objects to the cost per page assessed on two of the
transcripts-specifically the deposition transcripts of Wendy
Menzel and Shelly Oblak-as exceeding the regular copy rate
under the local rules. Local Rule 54.1(b) states that the
costs of a transcript shall not exceed the regular copy rate
established by the Judicial Conference of the United States,
which is currently $3.65 per page for an original transcript.
The Court sustains TSC's objection as to the amounts
billed for the deposition transcripts of Menzel and Oblak and
deducts $39.60 from the Bill of Costs. TSC also objects to
costs related to the deposition transcripts of Guy Kornblum
and Edward Buckner, as the invoices defendants submitted for
these depositions are not itemized but simply list total
amounts of $3, 109.25 and $793.25, respectively. ...