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,
ILLINOIS DEPARTMENT OF CORRECTIONS,
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
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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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
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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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.
2008). Mother & Father, 338 F.3d at 712. The Seventh Circuit has approved an
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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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$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
United States District Court
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