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Case 3:09-cv-00133-DRH-PMF Document 92 Filed 11/23/11 Page 1 of 5 Page ID #1066

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

BETTY D. COOK,

Plaintiff,

v.

ILLINOIS DEPARTMENT OF CORRECTIONS,

Defendant.



No. 09-cv-0133-DRH

MEMORANDUM and ORDER

HERNDON, Chief Judge:

Pending before the Court is defendant’s bill of costs (Doc. 85). Specifically,

defendant moves for costs in the amount of $5,044.00 which include: (1) $94.06 for

service of summons and subpoena; (2) $3,497.45 in fees for deposition transcripts

and (3) $1,452.49 in witness fees. Plaintiff objects to all the costs requested by

defendant (Doc. 89). Based on the following, the Court awards defendant’s bill of

costs.

Rule 54(d)(1) provides that “costs other than attorneys' fees shall be allowed

as of course to the prevailing party unless the court otherwise directs ...” Cefalu v.

Vill. of Elk Grove, 211 F.3d 416, 427 (7th Cir. 2000). There is a presumption in

favor of the award of costs, and in order to overcome that presumption, “the losing

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Case 3:09-cv-00133-DRH-PMF Document 92 Filed 11/23/11 Page 2 of 5 Page ID #1067

party bears the burden of an affirmative showing that taxed costs are not

appropriate.” Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir.

2005) (citing M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1409 (7th Cir.

1991)). Thus, Rule 54(d)(1) establishes “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 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); see also, Riveria. 469 F.3d

at 634.

Although the prevailing party is, thus, presumptively entitled to costs, not all

of the costs of litigation are recoverable. “[A] district court may not tax costs under

Rule 54(d) unless a federal statute authorizes an award of those costs.” Republic

Tobacco Co. v. N. Atl. Trading Co., 481 F.3d 442, 447 (7th Cir. 2007). The list of

recoverable costs pursuant to 28 U.S.C. § 1920 includes: (1) fees of the clerk and

marshal, (2) fees for transcripts, (3) witness and printing fees and expenses, (4) fees

for copies or papers necessarily obtained for use in the case, (5) docket fees, and (6)

compensation for court-appointed experts and interpreters. 28 U.S.C. § 1920. Taxing

costs against the non-prevailing party requires two inquiries: (1) whether the cost is

recoverable, and (2) whether the amount assessed is reasonable. See Majeske v.

City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000). Further, 28 U.S.C. § 1924

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Case 3:09-cv-00133-DRH-PMF Document 92 Filed 11/23/11 Page 3 of 5 Page ID #1068

requires that the party filing the bill of costs verify the claimed items by attaching an

affidavit attesting “that such item is correct and has been necessarily incurred in the

case and that the services for which fees have been charged were actually and

necessarily performed.” Defendant did so in this case.

First, defendant asks for $94.06 in fees for service and summons for Pat

Rensing. Plaintiff objects to this fee as improper in that while there is a request for

an advance of funds for that amount, there is no evidence that this person was issued

a subpoena. A review of the record reflects that Paticia Rensing testified during the

trial on May 27, 2011, from 2:47 PM to 3: PM. (Doc. 71). Thus, the Court finds

defendant’s assertion that the subpoena fee of $94.06 is reasonable. Thus, the Court

awards defendant $94.06 for the subpoena fee.

Next, defendant seeks $3,497.45 in deposition transcripts as these deposition

transcripts were used in preparing for this case and were necessary to address the

issues that were pending at the time the depositions were taken. Plaintiff objects for

that the transcripts were not obtained for use in the case or at trial except for the

deposition of Anne Casey and plaintiff even objects to this as the parties had

informally agreed that Casey’s deposition was for discovery purposes.

The Court will award costs for deposition transcript so long as the deposition

appears reasonably necessary in light of the facts known at the time of the deposition

without regard to intervening developments that render the deposition unneeded for

further use. Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702 (7 Cir.

th

2008). Mother & Father, 338 F.3d at 712. The Seventh Circuit has approved an

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Case 3:09-cv-00133-DRH-PMF Document 92 Filed 11/23/11 Page 4 of 5 Page ID #1069

award for videotape recording, as well, under appropriate circumstances. Id. at 702.

A review of the record in this case demonstrates, that all of these depositions were

utilized during the case and most utilized during the summary judgment stage of the

litigation. In fact, in support of its motion for summary judgment, defendant

submitted the following depositions: plaintiff, Feazel, Sanner, Wisely, Toennies,

Ballantini, Loepker, Robert, Landreth, Casey, and Beckman (Doc. 27). Clearly,

plaintiff is incorrect when she states that these depositions were not used during the

case. A review of the depositions reveals that the depositions were reasonably

necessary at the summary judgment stage of the litigation and that the charges are

appropriate. Thus, the Court awards defendant $3,497.45 in deposition fees.

Lastly, defendant seeks $1,452.49 in costs associated with witnesses fees

pursuant to 28 U.S.C. 1920(3) and 28 U.S.C. § 1821. See Majeske, 218 F.3d at 825-

26 (“Collectively, 28 U.S.C. § § 1821 and 1920(3) authorize the award of costs to

reimburse witnesses for their reasonable travel and lodging expenses). Section 1821

provides for a per diem of $40 per day for attendance at a court proceeding or

deposition. Defendant asks for $108.74 for Julius Flagg; $120.47 for Ty Bates;

$203.88 for Michelle Taphorn; $84.26 for Mark Beckmann; $213.40 for Bart

Toennies; $126.76 for Gina Feazel; $137.30 for Terry Loepker; $84.26 for Cindy

Cagle; $106.70 for Tony Ballantini and $266.72 for Brandon Risse. The bill of costs

specifies the per diem, subsistence and mileage costs for each witness. Despite

plaintiff’s general objection to these fees, the Court finds that the requested amount

to each witness is reasonable under 28 U.S.C. § 1920(3) and awards defendant

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Case 3:09-cv-00133-DRH-PMF Document 92 Filed 11/23/11 Page 5 of 5 Page ID #1070

$1,452.49 in witness fees.

Accordingly, the Court APPROVES defendant’s bill of costs (Doc. 85). The

Court AWARDS defendant $5,044.00 in costs.

IT IS SO ORDERED.

Signed this 22nd day of November, 2011.

David R. Herndon
2011.11.22
17:19:55 -06'00'

Chief Judge
United States District Court

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