Opinion
TH 98-196-C T/H
July 26, 2001
ENTRY ON DEFENDANTS' BILL OF COSTS
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
On April 5, 2001, Defendants submitted a Bill of Costs, final judgment having been entered on multiple jury verdicts in favor of all Defendants on March 22, 2001. In its Bill of Costs, Defendants seek $2367.56 as fees for witnesses and $112.00 as fees for exemplification and copies of papers. Plaintiff objects to certain of these costs. This Entry addresses Defendants' petition and Plaintiff's objections.
Defendants' submission, in its entirety, consisted of an AO form 133 with attached invoices. See S.D.Ind.L.R. 54.1.
Standard
Federal Rule of Civil Procedure 54(d) provides that "costs . . . shall be allowed as of course to the prevailing party unless the court otherwise directs[.]" The costs recoverable pursuant to this Rule are defined in 28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987). Only those costs that are reasonable and necessary to the litigation are recoverable. See Deimer v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 345 (7th Cir. 1994).
Witness Fees
Defendants petition the court for $2367.56 in witness fees. What Defendants actually seek, however, with the exception of three witnesses, are the costs incident to the taking of depositions. Defendants seek such costs for the depositions of Dale Carter, Thomas Habiger, David Ford, Jack Eads and C.N. Shealy. Plaintiff objects to the costs incident to the depositions of Thomas Habiger, David Ford and Jack Eads. Plaintiff does not object to the deposition costs of Dale Carter and C.N. Shealy. Accordingly those costs of $560.14 and $320.15 respectively, will be allowed.
Witness fees are an allowable cost under 28 U.S.C. § 1920(3).
Defendants seek $80.00 fees for each of the following three witnesses: Jean Hoffman, Sharon Kiefer and Linda Sherman. Plaintiff does not object to these witness fees. Accordingly, they will be allowed.
"[D]eposition costs (including transcripts) are authorized under [28 U.S.C.] § 1920(2) as stenographic transcripts." Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 454 (7th Cir. 1998) (citation omitted).
Thomas Habiger — Defendants seek $439.55 as a witness fee for Thomas Habiger. From the invoices attached to Defendants Bill of Costs, however, it is clear to the court that what Defendants actually seek are the costs incident to taking his deposition. Specifically, Defendants seek costs in the amount of $262.05 for the taking and transcription of such deposition and costs in the amount of $177.50 for the videotaping of that deposition.
Plaintiff first objects to the cost of the taking and transcribing of the deposition. Plaintiff suggests that the cost of $262.05 is unreasonable because it exceeds the copy rates established by the Judicial Conference of the United States. Plaintiff, relying upon Cengr, 135 F.3d at 455, further suggests that because the cost appears to exceed these established rates, the cost is not allowable. Plaintiff is mistaken. Cengr was decided pursuant to a Local Rule of the Northern District of Illinois which states in part, "If in taxing costs the clerk finds that a transcript or deposition was necessarily obtained, the costs of the transcript or deposition shall not exceed the regular copy rate as established by the Judicial Conference of the United States and in effect at the time the transcript or deposition was filed. . . ." Id.; N.D.Ill.L.R. 54.1. The Local Rules for the Southern District of Indiana do not have such a provision. In this district, such costs are allowable if they are reasonable.
Of course, the cost must also be necessary, but here Plaintiff does not challenge the necessity of this cost.
Plaintiff argues that the cost Defendants seek is unreasonable because it amounts to $4.15 per page. Plaintiff, based on the Judicial Conference established rates, argues that $3.00 per page is the appropriate cost that should be allowed and that Defendants' request should be reduced accordingly. Based upon the submission of Defendants, the court cannot determine the amount per page charged by the court reporter. The only information the court has is the reporter's invoice, which in relevant part provides:
Thomas Habiger, M.D. $262.06 including ASCII, postage, and exhibits
It is likely that the cost of transcribing this deposition was not $4.15 per page, but that when the postage, the ASCII disc and the exhibits were calculated into the amount, the total was $4.15 per page. As stated, though, this calculation is simply conjecture by the court. However, since Defendants did not submit a breakdown of the total cost, and such a breakdown is not readily apparent from the face of the invoice, the court is compelled to conclude that the cost of transcribing this deposition was $4.15 per page, which is unreasonably high. Because the court has so concluded, the court deems that the rate set by the Judicial Conference of $3.00 per page for ordinary transcripts is the appropriate rate by which to calculate the recoverable amount of this cost. See VI JUDICIAL CONFERENCE OF THE UNITED STATES, GUIDE TO JUDICIARY POLICIES AND PROCEDURES, COURT REPORTERS' MANUAL, ch. 20, pt. 20.3 (1998). Accordingly, the court will allow $189.00 for the taking and transcribing of Habiger's deposition.
Habiger's deposition was 63 pages in length. 63 x $3.00 = $189.00.
Plaintiff also objects to the cost of videotaping Habiger's deposition. Although the cost of videotaping a deposition is an allowable cost under section 1920, see Held v. Held, 137 F.3d 998, 1002 (7th Cir. 1998) (holding that the district court did not abuse its discretion by awarding the cost of videotaping a deposition of an out-of-state witness) (citation omitted), the cost must be necessary to the litigation. Defendants, by submitting only the itemized invoices without any explanation of the necessity of this charge, have made it impossible for the court to conclude that such cost was indeed necessary. Therefore, the cost of $177.50 for videotaping Habiger's deposition will not be allowed.
The court recalls that the videotape was played at trial. However, the playing of the videotape does not make the videotaping of the deposition necessary to the litigation per se. For instance, the videotaping of the deposition may not have been necessary, but done as a mere convenience to counsel or the witness. From the invoice submitted by Defendants, the court cannot make any conclusion regarding the purpose, and consequently the necessity, of the taping. From the court's perspective, the content of the deposition was far more critical than the medium. The playing of the videotaping added little, if anything, to the words spoken.
David Ford — Defendants seek $445.20 as a witness fee for David Ford. Again, it is clear from the invoices attached to Defendants' petition that Defendants are actually seeking the costs incident to the taking of his deposition. Defendants seek $200.20 for the cost of taking and transcribing Ford's deposition and $245.00 for the cost of videotaping that deposition.
Plaintiff objects to the cost of taking and transcribing Ford's deposition on the ground that it is unreasonable. From the court reporter's invoice, it is clear that the cost of transcribing Ford's deposition was $145.20 ($3.30 per page), the cost of taking the deposition was $50.00 and postage and handling was $5.00. These amounts are not unreasonable, and therefore, the cost of $200.20 will be allowed.
Plaintiff does not object to any of these amounts as being unnecessary.
As with the videotape of Habiger's deposition, Plaintiff objects to the cost of videotaping Ford's deposition. Again, Defendants have failed to provide the court with any information from which it could determine whether the videotaping of this deposition was necessary to the litigation or done as a mere convenience to counsel or the witness. Accordingly, the cost of videotaping Ford's deposition will not be allowed.
Jack Eads — Finally, Defendants seek $362.52 as a witness fee for Jack Eads. As with the previous two witnesses, Defendants are actually seeking this amount as a deposition cost. Plaintiff objects to this cost as unreasonable because it appears that the cost of transcribing the deposition was approximately $3.82 per page. Although this cost is high, it is not unreasonably so. Therefore, $362.52 will be allowed as the cost of transcribing Eads' deposition.
Copying Expenses
Defendants list as a recoverable cost $112.00 for "[f]ees for exemplification and copies of papers necessarily obtained for use in the case[.]" Plaintiff objects to this cost on the ground that Defendants have failed to substantiate this cost. Defendants submitted no verification of this cost. Defendants have not submitted an invoice, an affidavit, nor any other supporting document explaining to the court for what purpose these fees were incurred. Nor have Defendants submitted a list of the documents copied, the number of copies that were made or the cost per copy. From the information that Defendants have submitted it is impossible for the court to determine whether the copies were "necessarily obtained for use in the case." 28 U.S.C. § 1920(4) (permitting "[f]ees for exemplification and copies of papers necessarily obtained for use in the case"); see Roberts v. Owens-Corning Fiberglass Corp., 101 F. Supp.2d 1076, 1088 (S.D.Ind. 1999) (denying prevailing party costs for copying charges when it failed to submit any documentation regarding the purpose of the copies, the documents that were copied, the number of copies and the cost of each copy). Therefore, this expense of $112.00 will not be allowed.
Conclusion
For the foregoing reasons Defendants' Bill of Costs is ALLOWED in part and DENIED in part. The Clerk of the Court is ORDERED to tax $1872.01 as costs in this matter against Plaintiff.