Opinion
No. 97 C 8845
January 24, 2001
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants' Bill of Costs, pursuant to Federal Rule of Civil Procedure 54(d)(1) and 28 U.S.C. § 1920 (West 2000). Plaintiff filed a Response to the Bill of Costs, alleging indigency and that Defendants' costs are improper and excessive. For the following reasons, the Court grants Defendants' Motion, in part, and orders that the amount of $2,087.90 be taxed against Plaintiff and in favor of Defendants.
I. Plaintiff is Not Indigent and Should Pay Reasonable and Substantiated Costs.
It is undisputed that Defendants were the prevailing party in this case. Defendants' Bill of Costs seeks a total of $2,603.30, which includes: $1,297.10 for court reporter fees incident to the taking of Plaintiff's deposition, and for obtaining the transcript of Plaintiff's deposition; $903 for copying costs; and $403.20 for costs incurred in obtaining transcripts of court and administrative proceedings.
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. 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. Falcon v. City of Chicago, No. 98 C 4028, 2000 WL 1231403, at *1 (N.D. Ill. Aug. 28, 2000) (citation omitted). As the court in Falcon 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. Even if a litigant is indigent, costs are not automatically waived and may still be awarded at the court's discretion.Id. (citations omitted).
Although Plaintiff argues that he is indigent, he offers no affidavit to support this contention. Furthermore, Plaintiff admits that he is currently employed (although he was unemployed during parts of the litigation). Plaintiff further asserts — as if it would bolster his indigency claim — that he has other monetary obligations, which forces the Court to ponder, who among us doesn't have other financial commitments? Significantly, Plaintiff has not disclosed whether he has other assets, besides his income from his present job, or whether he could afford to pay these litigation costs in the future. Accordingly, the Court finds that, despite Plaintiff's claim of indigency, he should not be excused from paying litigation costs in this case.
II. Plaintiff's Challenge To Defendants' Costs As Improper.
Next, Plaintiff challenges Defendants' 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.
Plaintiff's only meritorious argument, with respect to improper and/or excessive costs, concerns the copying charges. In this regard, Plaintiff first argues that the $.20 per page charge for copies is excessive. While the Court recognizes that several courts in this district have held to the contrary ( see. e.g., Figueroa v. City of Chicago, No. 97 C 8861, 2000 WL 1036019, at *2 (N.D. Ill. July 20, 2000) (Conlon, J.) (allowing $.20 per page for copying); Kateeb v. Dominick's Finer Foods, Inc., No. 96 C 1229, 1997 WL 630185, at *1 (N.D. Ill. Sept. 30, 1997) (Kocoros, J.)(same); Medley v. Turner, No. 93 C 322, 1995 WL 358836, at *1 (N.D. Ill. June 13, 1995) (Castillo, J.) (same)), the Court also notes that other cases, including one recently decided by this Court ( e.g., Falcon, supra), have concluded that a $.15 per page copy cost is reasonable. See, e.g., Falcon, supra, 2000 WL 1231403, at *2 (Keys, J.); Eastern Trading Co. v. Refco, No. 97 C 6815, 1999 WL 529569, at *5 (N.D. Ill. July 20, 1999) (Conlon, J) Although there is conflicting law on the issue, the Court, in its discretion, will apply a $.15 per page copy cost to the relevant copies in the case sub judice.
Plaintiff further contends that Defendants may not recover costs for any copies of material retained for themselves. While Defendants assert that it was reasonable and necessary for them to make copies for themselves of Bates stamped documents produced during discovery, discovery responses, correspondence, motions, and court filings, the authority in this district is, unambiguously, to the contrary, and not surprisingly, Defendants cite no cases for the proposition that they should be able to recover costs for their own copies. Indeed, in Baxter Intern., Inc. v. McCaw, Inc., No. 95 C 2723, 1998 WL 102668 (N.D. Ill. March 3, 1998), the court addressed this precise issue, and held that the making of additional copies for a party's own use, even of Bates stamped discovery materials, is not recoverable:
The making of copies of the 54,483 pages of documents for production to plaintiffs in discovery is recoverable. However, the making of an additional copy for defendant, however valuable and convenient that may have been to defendant's preparation of the case, was nonetheless for the convenience of defendant's attorneys, since defendant A after all had the originals of documents in its possession. Therefore, recovery of the costs of copying only the copy for plaintiffs will be allowed.Baxter, 1998 WL 102668, at *3. This principle has been subsequently reaffirmed in several cases. See, e.g., Jones v. Board of Trustees of Community College Dist. No. 508, 197 F.R.D. 363, 364 (N.D. Ill. 2000) (holding that prevailing party may only recover for one copy to court and for one copy to opponent — not for prevailing parties' own copies); Sharp v. United Airlines, Inc., 197 F.R.D. 361, 362 (N.D. Ill. 2000) (disallowing prevailing party's cost to copy its own set of documents produced to opponent, because "however valuable and convenient that may have been to [prevailing party's] preparation of its case, it was nonetheless for the convenience of [prevailing party's] attorneys, since [prevailing party] after all had the originals of the documents in its possession.") (citations omitted), aff'd, 2001 WL 4988 (7th Cir. Jan. 2, 2001).
Therefore, cognizant that no copies produced for Defendants' personal use are taxable against the Plaintiff, the Court reduces Defendants' recoverable number of copies to the following: 60 pages for pleadings; 1,112 for motion-filings; 91 for discovery; 1,320 for documents produced to Plaintiff, and 1 for correspondence. The total number of copies comes to 2,584. If the Court multiplies 2,584 times $.15 (the cost per page of a copy), the total amount recoverable for copies is $387.60 (and not the $903 requested by Defendants).
While most of the correspondence between counsel was copied for Defendants' own personal use, a copy of the December 4, 1998 letter, that Defendants sent to Judge Bucklo, was made for Plaintiff, and accordingly, is recoverable.
Plaintiff also challenges the copying costs for the motions for extensions of time and the motions for leave to withdraw and substitute counsel. However, as pointed out by Defendants, § 1920(4) does not exclude such copies from its scope. Furthermore, Plaintiff provides no legal authority that copying costs for such motions are improper.
Plaintiff's other objections regarding improper costs are less persuasive. Plaintiff argues that Defendants should not recover the costs of Plaintiff's deposition transcripts. This contention is particularly unconvincing, as Plaintiff's deposition was clearly reasonable and necessary to Defendants' litigation of the case, and in fact, portions of Plaintiff's deposition transcripts were relied upon and attached to Defendants' successful summary judgment motion. See Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 455 (7th Cir. 1998) (holding that costs for a deposition will be compensable as long as the deposition was "reasonably necessary" to the case at the time it was taken).
Plaintiff further maintains that the transcript costs exceed the $3.00 per page rate for original transcripts established by the Judicial Conference. See Falcon, supra, 2000 WL 1231403, at *3, fn. 1. However, the Court's calculation of the rate per page comes to approximately $2.84 per page — well within the prescribed limit. Furthermore, the $6.00 xeroxing charge is recoverable, because it was for the purpose of copying the exhibits attached to the deposition transcripts. Finally, Plaintiff does not dispute the $60 court reporter attendance fee for Plaintiff's failure to appear for his deposition scheduled for August 18, 1999. Accordingly, Defendants should be awarded $1,297.10 for the costs related to the taking of Plaintiff's deposition.
Plaintiff's deposition transcripts (there were two) were 322 pages, and the cost of the transcripts was $914.85. Dividing $914.85 by 322. equals approximately $2.84. In order for Plaintiff to argue that the cost per page exceeded $3.00, Plaintiff would need to include the cost of the court reporter's attendance in taking the deposition, which is improper.
For the breakdown of the $1,297.10, see Defendants' Itemization for Bill of Costs at p. 6.
Plaintiff's last argument is that the court transcripts were unnecessary, and, therefore, the costs thereof should not be recoverable. But, as pointed out by Defendants, Plaintiff merely asserts that the transcripts were not necessary, and does not refute, or even attempt to refute, Defendants' detailed explanations for their use. Therefore, the $403.20 for the court transcripts are recoverable.
The Court does not find it necessary to repeat the detailed, and convincing, arguments given by Defendants as to why the transcripts were needed to defend the litigation, especially in light of Plaintiff's mere assertion that the transcripts were not needed, without an analysis of Defendants' reasons. For a detailed description of why the transcripts were reasonable and necessary, see Defendants' Memorandum on Law in Support of their Bill of Costs at pp. 6-8.
In conclusion, this Court grants the Bill of Costs, in part, and finds that $2,087.90 is to be taxed against Plaintiff, and in favor of Defendants.
IT IS THEREFORE ORDERED that:
Defendants' Bill of Costs be, and the same hereby is, GRANTED in the amount of $2,087.90.