Sommerfield v. City of Chicago et al
Filing
712
MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 10/31/2012:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DETLEF SOMMERFIELD,
Plaintiff,
Case No. 06 C 3132
v.
Hon. Harry D. Leinenweber
CITY OF CHICAGO,
Defendant.
MEMORANDUM OPINION AND ORDER
For the reasons stated herein, the Court grants in part and
denies in part Plaintiff Detlef Sommerfield’s Bill of Costs.
The
Court denies Defendant’s Motion for the parties to bear their own
costs.
I.
BACKGROUND
On May 5, 2008 Plaintiff Detlef Sommerfield (the “Plaintiff”)
filed his Second Amended Complaint.
the
City
of
Chicago
was
liable
In it, Plaintiff alleged that
for
religious
discrimination
(Count I), national origin discrimination (Count II), retaliation
(Count III), and violations of § 1983 and § 1981 (Count IV).
Plaintiff
also
claimed
Sergeant
Lawrence
Knasiak
was
liable
individually for violations of § 1983 and § 1981 (Count V).
Plaintiff sought a total award of $500,000 plus fees and costs.
Ultimately, the case proceeded to trial on the first three counts
against the City of Chicago (the “Defendant”).
Count I alleged
religious harassment in violation of Title VII, Count II alleged
national origin harassment in violation of Title VII, and Count III
alleged retaliatory harassment in Violation of Title VII. The jury
returned a verdict for the Plaintiff on Counts I and II, awarding
Plaintiff $30,000.
The jury found in favor of Defendant on
Count III.
On March 13, 2012 Plaintiff filed his Bill of Costs pursuant
to FED. R. CIV. P. 54(d) and Local Rule 54.1.
These rules permit
recovery for the litigation costs specified in 28 U.S.C. § 1920.
On April 25, 2012, Defendant moved for the parties to bear their
own costs.
Both motions are currently before the Court.
II.
Federal
Rule
of
LEGAL STANDARD
Civil
Procedure
54(d)(1)
provides
that,
“[u]nless a federal statute, these rules, or a court order provides
otherwise, costs — other than attorney's fees — should be allowed
to the prevailing party.”
FED . R. CIV . P. 54(d)(1).
the recoverable costs include:
Specifically,
(1) fees of the clerk and marshal;
(2) fees for printed or electronically recorded transcripts; (3)
fees and disbursements for printing and witnesses; (4) fees for
exemplification and the costs of making copies; (5) docket fees
under
Section
1923;
and
(6)
compensation
of
court
appointed
experts, interpreters, and costs of special interpretation services
under section 1828 of this title.
28 U.S.C. § 1920.
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While Rule 54(d) provides a strong presumption that the
prevailing party will recover costs, the “court must review a
proposed bill of costs ‘in scrupulous detail.’”
Shah v. Vill. of
Hoffman Estates, No. 00 C 4404, 2003 WL 21961362, at *1 (N.D. Ill.
Aug. 14, 2003).
The claimed expenses must be “reasonable, both in
amount and necessity to the litigation.”
Id.
The Court is vested
with wide discretion to determine whether and to what extent costs
may be awarded to the prevailing party.
Blackwell v. Kalinowski,
No. 08 C 7257, 2011 WL 3555770, at *1 (N.D. Ill. Aug. 11, 2011).
The losing party has the burden of showing that the claimed costs
are not appropriate.
Id.
III.
A.
DISCUSSION
Prevailing Party
Prior to awarding costs under Rule 54(d), the Court must
determine who the “prevailing party” is in the lawsuit.
CIV. P. 54(d).
FED . R.
“A party prevails . . . when a final judgment awards
it substantial relief.”
Smart v. Local 702 Int’l Bhd. Of Elec.
Workers, 573 F.3d 523, 525 (7th Cir. 2009).
A party receives
substantial relief even if it doesn’t prevail on every claim.
Slane v. Mariah Boats, Inc., 164 F.3d 1065, 1068 (7th Cir. 1999).
Defendants argue that each party should bear its own costs
because Plaintiff lost “nearly all of his case either at summary
judgment or at trial.”
The Court disagrees.
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The Court should determine who the prevailing party is not at
each stage of the litigation, but instead when the controversy is
“finally decided.”
Republic Tobacco Co., v. North Atl. Trading
Co., Inc., 481 F.3d 442, 447 (7th Cir. 2006).
In Republic Tobacco,
the Seventh Circuit reversed a district court’s award of fees to a
party who lost at trial, but succeeded on post-trial motions, and
held that “a district court’s award of costs should not depend on
who wins the various battles preceding final judgment.”
Id.
In accordance with this reasoning, the Court finds Defendant’s
argument regarding the Court’s summary judgment decision largely
irrelevant for the purpose of establishing who the prevailing party
was after the trial concluded. Moreover, the Court finds the cases
Defendant uses to support its argument that Plaintiff was not the
prevailing party at trial distinguishable.
Defendant argues that Testa v. Village of Mundelein and
Gonzalez v. City of Elgin support the proposition that Plaintiff is
not the prevailing party for the purposes of Rule 54(d).
However,
in Gonzalez, the district court determined each party should bear
its own costs because neither party prevailed “as to a substantial
part of the litigation because the verdict was split.” Gonzalez v.
City of Elgin, No. 06-C-5321, 2010 U.S. Dist. 118357 at *5 (N.D.
Ill. Nov. 8, 2010).
of
seven
In that case, “[t]he jury concluded that three
Defendants
violated
two
constitutional and state law rights.”
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of
the
Id.
six
Plaintiffs’
In Testa, the jury
entered a verdict in favor of the plaintiff on one count and in
favor
of
the
defendant
on
the
other.
Testa
v.
Village
of
Mundelein, 89 F.3d 443, 444 (7th Cir. 1996).
In the present case, the jury entered a verdict in favor of
Plaintiff on two of his three claims and awarded the Plaintiff
$30,000.
While the Court recognizes that Defendant prevailed on
one of Plaintiff’s three claims, the Court does not find a verdict
like this analogous to the verdicts in Gonzalez and Testa.
As
such, the Court finds Plaintiff received “substantial relief” so
that he is the “prevailing party” for the purposes of Rule 54.
Smart, 573 F.3d at 525.
B. Expert Fees
Defendant
alternatively
argues
that
even
if
this
Court
determines that Plaintiff is entitled to costs, Plaintiff should
not be entitled to costs related to Plaintiff’s expert witness,
James Pastor.
Rule 54(d) allows a party to recover only those costs listed
in 28 U.S.C. § 1920.
(7th Cir. 2005).
not
a
court
See Winniczek v. Nagelberg, 400 F.3d 503, 504
Defendant argues that because James Pastor was
appointed
expert
and
Section
1920
only
permits
compensation for “court appointed” experts, Plaintiff’s request for
costs associated with Pastor should be denied.
“As a general rule, expert fees beyond the limits prescribed
by 28 U.S.C. § 1821 are not recoverable as costs.”
- 5 -
Gallagher v.
Gallagher,
No.
June 24, 2010).
07-CV-4196,
2010
WL
2610192
at
*2
(N.D.
Ill.
Unless an expert witness is court appointed, the
fees “are not recoverable as costs because they are not among the
taxable costs itemized in 28 U.S.C. § 1920(6).”
Andrews, 249 F.R.D. 279, 282 (N.D. Ill. 2007).
Portman v.
Those expenses
which are not on the statutory list must be borne by the party who
incurred them.
1996).
Collins v. Gorman, 96 F.3d 1057, 1058 (7th Cir.
In this case, Plaintiff does not dispute the fact that
James Pastor is not a court appointed expert witness.
Thus, the
Court denies Plaintiff’s request for such fees.
As added support for the denial, the Court reminds Plaintiff
that “[i]n order to recover witness fees, a party must show that
the witness’s testimony was “relevant, material, and reasonably
necessary to the case.”
Rexam Bev. Can Co. v. Bolger, No. 06-C-
2234, 2008 WL 5068824 at *10 (N.D. Ill. Nov. 25, 2008).
Plaintiff’s witness never testified at trial.
Here,
As such, the Court
cannot find James Pastor was necessary or even remotely material to
Plaintiff’s case because the jury never heard his testimony.
See
EEOC v. Wal-Mart Stores, Inc., No. 99-CV-106 DRH, 2000 WL 1162029
at *2 (S.D. Ill. June 29, 2000) (rejecting costs for witnesses who
testified on claims rejected by the jury).
Therefore, the Court
denies Plaintiff’s request for the costs of fees associated with
Pastor James and reduces Plaintiff’s Bill of Costs by $3,825.00.
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C.
Plaintiff’s Requested Costs
1. Copying Costs and Filing Fee
Plaintiff seeks $161.50 in copying costs for 1,615 pages at
.10 per page. Prevailing parties are entitled to fees from copying
necessary
papers
and
courts
in
this
district
have
found
photocopying costs between $0.10 and $0.20 per page reasonable. See
28 U.S.C. § 1920; Shanklin Corp. v. American Packaging Machinery,
Inc., No. 95–1617, 2006 WL 2054382, at *4 (N.D. Ill. July 18,
2006). Plaintiff also seeks $350.00 for his filing fee. Defendant
does not object to either of these costs.
Accordingly, $511.50 is
properly taxable to Plaintiff for copying costs and filing fees.
2.
Transcript and Deposition Costs and
Court Reporter Appearance Fees
Plaintiff seeks $9,035.10 in transcript costs and $2,20.63 in
court reporter appearance fees.
“Deposition and transcript costs
are recoverable where the deposition was reasonably necessary at
the time the deposition was taken in light of the facts known at
the time.”
Kaplan v. City of Chicago, No. 05-C-2001, 2009 WL
1940789 at *4 (N.D. Ill. July 6, 2009).
Courts in this district
have found court reporter attendance fees ranging from $35.00 to
$95.00 per hour to be reasonable for court reporters.
See Manson
v. City of Chicago, 825 F.Supp.2d 952 (N.D. Ill. Nov. 10, 2011).
However, “[c]osts incurred merely for the convenience of the
prevailing party may not be recovered.”
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Trading Technologies
Intern., Inc. v. eSpeed, Inc., 750 F.Supp.2d 962, 969 (N.D. Ill.
2010).
The prevailing party has the “burden of demonstrating the
amount of recoverable costs.”
Id.
The following chart broken down by witnesses and hearing dates
summarizes what Plaintiff has requested for reimbursement.
WITNESS
1.Christine
Durrell
2.Robert
Flores
3.Christopher
Taliaferro
4.Carson
Earnest
5.Victor
Gutierrez
6.Susan Clark
7.Robert
Galassi
8.Betty Woods
9.Sgt.Knasiak
10.Detlef
Sommerfield
Vol. I
11.Detlef
Sommerfield
Vol. II
COURT REPORTER
ATTENDANCE FEES
$343.75($62.50/hour)
TRANSCRIPT/
COPY FEES
$645.70(262 pages)
RELATED FEES
[ECF:638; Ex. 4 at 8.] [ECF: 638; Ex. 3
at 2]
$160.00($40.00/hour)
$418.60(176 pages)
TOTAL
REQUESTED
$989.45
$578.60
[ECF: 638 Ex. 4 at 9.] [ECF: 638; Ex. 3
at 6.]
$671.88 ($62.50/hour) $760.20(314 pages)
($93.75/hour)
[ECF: 638; Ex. 3
[ECF:638; Ex. 4 at 1.] at 3]
N/A
$714.70(302 pages)
$1432.08
$714.70
$160.00 ($40.00/hour)
[ECF: 638; Ex. 3
at 7.]
$595.00(250 pages)
$755.00
[ECF: 638; Ex. 4 at
7.]
$280.00 ($40.00/hour)
[ECF: 638; Ex. 3
at 11.]
$754.65(319 pages)
$1034.65
[ECF: 638; Ex. 4 at
6.]
$80.00
[ECF: 638; Ex. 3
at 10.]
$178.90 (78 pages)
$258.90
[ECF: 638; Ex. 4 at
5.]
N/A
[ECF: 638; Ex. 3
at 9.]
$691.20(292 pages)
$691.20
$280.00 ($40.00/hour)
[ECF 638; Ex. 3 at
4.]
$660.35(281 pages)
[ECF: 638; Ex. 4 at
4.]
N/A
N/A
[ECF: 638: Ex. 3
at 15.]
$932.75
[invoice submitted
w/o page numbers]
[ECF: 638; Ex. 3
at 1.]
$593.90(181 pages)
[ECF: 638; Ex. 3
at 14.]
- 8 -
$32.50
$972.85
[ECF: 638;
Ex. 2 at 16.]
$932.75
$593.90
WITNESS
COURT REPORTER
ATTENDANCE FEES
12.Detlef
Sommerfield
Vol. III
N/A
13.Margaret
Barren
$125.00
14.John
Majweski
15.Court
Transcript
11.18.08
Hearing
16.Court
Transcript
10.4.07
Hearing
17.Court
Transcript
4.14.10
Hearing
18.Court
Transcript
3.4.08
Hearing
19.Court
Transcript
8.7.07
Hearing
20.Court
Transcript
7.18.08
Hearing
21.Court
Transcript
TRANSCRIPT/
COPY FEES
324.80
[no invoice
submitted.]
RELATED FEES
TOTAL
REQUESTED
$324.80
[invoice submitted
w/o page numbers]
$125.00
$343.40(144 pages)
$463.40
[ECF: 638;Ex. 4 at 2.] [ECF: 638; Ex. 6
at 1.]
N/A
$281.05 (77 pages)
$281.05
N/A
[ECF: 638 Ex. 3 at
8.]
$125.00(158 pages)
$125.00
N/A
[ECF: 638; Ex. 3
at 13.]
$24.25 (5 pages)
N/A
[ECF: 638; Ex. 3
at 12.]
$157.25 (37 pages)
$157.25
N/A
[ECF: 638; Ex. 3
at 5.]
$187.20
$187.20
N/A
[no invoice
submitted]
$10.80
$157.25
[ECF: 638; Ex. 4 at
3.]
$120.00
N/A
[no invoice
submitted]
$9.00
[no invoice
submitted]
`
$24.25
$9.00
At the outset, the Court finds that Plaintiff has failed to
satisfy his burden with regards to a handful of his requested costs
for transcripts and court appearance fees. Specifically, Plaintiff
failed to provide this Court any invoice or other supporting
evidence for Items 12, 19, 20, and 21.
In addition to this,
Plaintiff listed Item 11 twice in his Bill of Costs, but failed to
provide two separate invoices.
The Court refuses to include this
expense twice and refuses to include any requested expense for
- 9 -
which Plaintiff has failed to provide an invoice.
Thus, the Court
first reduces Plaintiff’s transcript and court reporter appearance
fees by $1,125.70.
See Trading Tech. Intern., Inc., 750 F.Supp.2d
at 969 (reducing costs awarded to a prevailing party due to the
party’s failure to substantiate all claimed costs).
The Court next turns to those transcript and court reporter
appearance costs which Plaintiff has provided invoices.
Under
Local Rule 54.1(b), “the costs of the transcript or deposition
shall not exceed the regular copy rate as established by the
Judicial Conference of the United States in effect at the time the
transcript or deposition was filed. . . .”
Local Rule 54.1(b).
When the depositions at issue were filed, the copy rate established
by
the
Judicial
Conference
transcripts was $3.65.
for
regular
original
deposition
See, http://www.ilnd.uscourts.gov/CLERKS_
OFFICE/CrtReporter/trnscrpt.htm. Recently, courts in this district
have held that this maximum $3.65 per page rate includes any
claimed court reporter appearance fee.
Thus, if a court reporter
appearance fee “pushes the overall cost of the transcript beyond
the maximum ordinary transcript rates established by the Judicial
Conference,” the additional expense is denied.
See Amer. Casualty
Ins. Co., v. City of Waukegan, No. 07-C-1990, 2011 WL 6437535 at *4
(N.D. Ill. Dec. 20, 2011).
Because of this, the Court reduces
Plaintiff’s requested costs for Items 1, 3, and 17 in order to
remain within the maximum $3.65 per page rate.
- 10 -
Finally, Plaintiff failed to provide the Court an invoice
stating the number of pages and the hourly rate for Items 10 and
13.
[W]here a party seeking costs fails to provide
specific information relating to the hourly
charges of the court reporter or the number of
pages in a requested transcript, no costs will
be awarded. Without this type of information
it is impossible for the Court to determine
what specific costs are reasonable and
necessary.
Glenayre Electronics, Inc. v. Jackson, No. 02-C-0256, 2003 WL
21947112 at *2 (N.D. Ill. Aug. 11, 2003).
Thus, the Court refuses to award costs for Item 10.
The
following chart summarizes what expenses the Court will award to
Plaintiff
with
regard
to
court
reporter
appearance
fees
transcript costs requests.
WITNESSES
1. Christine Durrell
2. Robert Flores
3. Christopher Taliaferro
4. Carson Earnest
5. Victor Gutierrez
6. Susan Clark
7. Robert Galassi
8. Betty Woods
9. Sgt. Knasiak
11. Detlef Sommerfield Vol. II
14.
15.
16.
17.
18.
John Majweski
Court transcript - 11.18.08 Hearing
Court transcript - 10.4.07 Hearing
Court transcript- 4.14.10 Hearing
Court transcript - 3.4.08 Hearing
- 11 -
TOTAL AWARDED
$956.30
$578.60
$1146.10
$714.70
$755.00
$1034.65
$258.90
$691.20
$972.85
$593.90
$463.40
$281.05
$125.00
$18.25
$157.25
and
As such, the Court awards Plaintiff a total of $8,747.15 in
transcript and court reporter appearance fees.
3.
Fees for Subpoenas
Plaintiff requests reimbursement for five subpoena fees issued
to Margaret Barron, Michael Galassi, Maureen Hayes, Abuzanat, and
Edward Burger for $30.00 each.
Plaintiff also seeks appearance
fees for Peter Trinidad, John Minich, and Edward Burder in the
amount of $40.00 each, plus mileage costs.
Defendant does not
object to such costs.
Pursuant to 28 U.S.C. § 1821, a witness shall be paid an
attendance fee of $40.00 per day.
addition,
traveled.
a
witness
is
entitled
28 U.S.C. § 1821(b).
to
28 U.S.C. § 1821(c)(2).
traveled is made on
for
mileage
Compensation for mileage
the basis of a rate established by the
Administrator of General Services.
$0.55 per mile.
compensation
In
Id.
41 C.F.R. § 301-10.303.
Currently, this rate is
The Court has reviewed
Plaintiff’s requests for subpoena fees and mileage traveled and
finds them reasonable; awards Plaintiff $327.75 in costs for such
fees.
IV.
CONCLUSION
For the reasons stated herein, the Court rules as follows:
1.
Denies Defendant’s Motion for each party to bear its own
costs;
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2.
Grants Defendant’s Motion insofar as it seeks to bar
Plaintiff from recovering expert witness fees for James Pastor in
his Bill of Costs; and
3.
Awards Plaintiff the sum of $9,586.40 in costs.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
DATE:10/31/2012
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