Opinion
No. 98 C 4028
August 25, 2000
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Bill of Costs, pursuant to Federal Rule of Civil Procedure 54(d)(1) and 28 U.S.C. § 1920. In response, Plaintiff has filed a Motion to Deny Costs based upon his alleged indigency and because Defendant's costs are allegedly improper and excessive. For the following reasons, the Court grants Defendant's Motion, in part, and orders that the amount of $8,648.51 be taxed against Plaintiff and in favor of Defendant.
I. Plaintiff is Liable for Defendant's Reasonable and Substantiated Costs.
It is undisputed that Defendant was the prevailing party in this case. Defendant's Bill of Costs seeks a total of $9,557.46, which includes: $3,426.45 for court reporter fees incident to the taking of depositions in this case and for obtaining transcripts in the underlying criminal case; $1,023.80 for copying fees; $516.00 for witness fees; $2,163.85 in subpoena and copying fees for plaintiff's medical and employment records; and $2,427.36 in printing fees for color prints and reproductions of photos, charts, and graphs produced at trial.
Federal Rule of Civil Procedure 54(d)(1) provides that "costs other than attorney's fees shall be allowed as of course to the prevailing party unless the court otherwise directs." See also 28 U.S.C. § 1920 (West 2000). There is a strong presumption in favor of awarding costs to the prevailing party. See Weeks v. Samsung Heavy Indus. Co., Ltd. 126 F.3d 926, 945 (7th Cir. 1997). The losing party may overcome this presumption by a showing of indigency. McGill v. Faulkner, 18 F.3d 456, 457 (7th Cir. 1994) (refusing to adopt per se rule that indigency alone overcomes the presumption in favor of awarding costs.). However, the losing party must demonstrate actual indigency, not merely limited financial resources, before a court may exercise its discretion in this manner. Jansen v. Packaging Corp. of America, No. 96 C 3777, 1997 WL 583063, at *1 (N.D. Ill. Sept. 11, 1997). As the court in Jansen explained:
It is not just a matter of being unable to presently pay the costs; it must also be shown that the litigant is not likely to be able to pay the costs in the future. McGill, 18 F.3d at 459; Gordon v. Castle Oldsmobile Honda, Inc., 157 F.R.D. 438, 440 (N.D. Ill. 1994). Even if a litigant is indigent, costs are not automatically waived and may still be awarded at the court's discretion.Id. (citing Plair v. E.J. Brach Sons, Inc., No. 94 C 244, 1995 WL 387789, at *2 (N.D. Ill. June 28, 1995)).
Plaintiff has offered his affidavit and the affidavit of his father in support of his claim that he is indigent. These affidavits reveal that Plaintiff: 1) has not received any income within the last year; 2) lives with his parents because he cannot afford to live elsewhere; and 3) assists his father at the lumber yard where he works without receiving compensation for these services.
In exercising its discretion, the Court finds that, despite Plaintiff's current limited financial resources, he should not be excused from paying costs in this case. Plaintiff's self-serving affidavit fails to disclose whether he has any assets. Moreover, although Plaintiff's brief argues that his injuries render him unable to work, his affidavit stating that he performs services at a lumber yard undermines this assertion. As such, Plaintiff has not demonstrated his inability to pay these costs in the future. Finally, and most significantly, the Court agrees with the rationale that even an indigent plaintiff "should not be shielded from the costs he forced the [Defendant] to incur" and "must consider the relative merits of [his] lawsuit against the pain an unsuccessful suit might inflict on [his] pocketbook." McGill, 18 F.3d at 460.
The Court also rejects Plaintiff's argument that the Court should deny Defendant's Bill of Costs to prevent the chilling effect a contrary ruling would have upon civil rights litigants. See Contreras v. City of Chicago, 119 F.3d 1286, 1295 (7th Cir. 1997) (remanding a district court's denial of Rule 54(d)(1) costs, where the district court apparently denied costs to prevent a chilling effect on civil rights plaintiffs with bona fide claims). Therefore, the Court finds that Plaintiff is liable for Defendant's reasonable costs.
II. Plaintiff's Challenge To Defendant's Costs
Next, Plaintiff challenges Defendant's costs as improper and/or excessive. Under § 1920, recoverable costs include: 1) fees of the clerk; 2) fees for transcripts; 3) fees for printing and witnesses; 4) fees for copies of papers necessarily obtained for use in the case; 5) docket fees; and 6) compensation of court appointed experts and interpreters. 28 U.S.C. § 1920 (West 2000).
Plaintiff initially argues that the $.20 per page charge for copies is excessive. The Court agrees and notes that courts in this district have concluded that a $.15 per page copy cost is reasonable. See, e.g., Eastern Trading Co. v. Refco, No. 97 C 6815, 1999 WL 529569, at * 5 (N.D. Ill. July 20, 1999). As such, Defendant's copying costs are reduced from $1,023.80 to $767.85.
Plaintiff further contends that Defendant may not recover costs for copies and pleadings produced on behalf of the Department of Police, City of Chicago, Matthew Rodriguez, and Terry Hillard ("policy defendants"). As such, Plaintiff argues that the Court must disallow copying charges accrued exclusively for the policy defendants, as well as pleadings filed on behalf of the policy defendants. The Court notes, however, that the policy defendants remained in this action at Plaintiff's insistence. As such, the Court finds that Defendant may recover the challenged costs that were accrued before the Court's bifurcation Order, which was entered on September 23, 1999. Therefore, Defendant's copying costs are further reduced from $767.85 to $728.25.
Next, Plaintiff challenges Defendant's claim to $2,163.85 for "other subpoena and copying costs" because Defendant fails to describe the number of pages copied, the per page cost, the subpoena fee, the type of service, etc. The Court agrees that the charges for the copies are not discernable from the supporting documentation and are, therefore, not allowed. See American Automotive Accessories v. Fishman, 991 F. Supp. 995, 997 (N.D. Ill. 1998) (rejecting defendant's request for copying costs by an outside print shop where defendant merely attached nondescript invoices to his bill of costs). However, the invoices do, in many instances, specify the charge for the service of a subpoena as, approximately, $49.75. Courts in this district have determined that such a charge is both allowable under § 1920 and reasonable. Movitz v. First Nat'l Bank of Chicago, 982 F. Supp. 571, 574 n. 1 (N.D. Ill. 1997) (citing Collins v. German, 96 F.3d 1057, 1060 (7th Cir. 1996)). Accordingly, the Court will allow $49.75 for each service of a subpoena, but disallow the remaining, unsubstantiated charges for copying fees. In addition, the Court will allow Defendant's costs for producing trial exhibits, jury exhibit binders, and color laser prints. Therefore, Defendant's request for $2,163.85 in subpoena and outside copying charges is reduced to $447.75 for subpoena charges, and $1,103.70 for the preparation of jury and trial exhibits, for a total allowable charge of $1,551.45.
Plaintiff's next attack on Defendant's costs is less persuasive. Plaintiff claims that Defendant's charge of $3,426.45 for "Court Reporter Costs" must be denied for failure to describe the per page fee, the number of pages, delivery charges, etc. To the contrary, a review of Defendant's "documentation includes a per page charge for the referenced court reporting costs. Plaintiff does not challenge these costs as excessive, nor has he raised an argument demonstrating why one or all of the charges were not reasonably necessary. See Barber v. Ruth, 7 F.3d 636, 645 (7th Cir. 1993) ("transcripts need not be absolutely indispensable in order to provide the basis of an award of costs, it is enough if they are reasonably necessary.") Therefore, the Court concludes that Defendant is entitled to $3,426.45 for "Court Reporter Costs."
The Judicial Conference has established $3.00 as the per page rate for original transcripts and permits $4.00 per page for expedited transcripts. Mortell v. MacNeal Health Care Serv. Corp., No. 99 C 4531, 2000 WL 804666, at *1 (June 21, 2000). Defendant's costs are within this range.
Plaintiff contends that Defendant has failed to show that the blown-up, color photographs of the scene and the vehicle were necessary and, therefore, may not recover for such charges. The Court disagrees, noting that issues of timing, distance, visibility, and location were critical issues in this trial. See Eastern Trading Co. v. Refco, Inc., No. 97 C 6815, 1999 WL 529569, at *4 (N.D. Ill. July 20, 1999) (noting the importance of visual aids at trial and rejecting the losing party's contention that these costs should be disallowed because the prevailing party failed to demonstrate that each graphic was used at trial). Therefore, the Court grants Defendant the $2,427.36 he seeks.
Finally, Plaintiff categorizes Defendant's attempt to recover the disallowed costs as "material overreaching," and contends that the Defendant's conduct justifies disallowing the costs in their entirety. The Court disagrees, finding that the disallowed costs are primarily the result of insufficient documentation, not bad faith.
In conclusion, this Court grants the Bill of Costs, in part, and finds that $8,648.51 is to be taxed against Plaintiff, and in favor of Defendant.
IT IS THEREFORE ORDERED that:
Defendant's Bill of Costs be, and the same hereby is, GRANTED in the amount of $8,648.51.