United States Fidelity And Guaranty Company v. Shorenstein Realty Services, LP et al

Filing 399

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 8/16/2011:Mailed notice(mpj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES FIDELITY AND GUARANTY
COMPANY,
Plaintiff,
v.
SHORENSTEIN REALTY SERVICES, L.P.;
SHORENSTEIN MANAGEMENT, INC.;
SHORENSTEIN COMPANY, LLC; SRI MICHIGAN
VENTURE, LLC; SRI MICHIGAN AVENUE
MANAGEMENT, INC.; 175 EAST DELAWARE
PLACE HOMEOWNERS ASSOCIATION; and
NATIONAL UNION FIRE INSURANCE OF
PITTSBURGH, PA,
Defendants.
_______________________________________
NATIONAL UNION FIRE INSURANCE COMPANY
OF PITTSBURGH, PA; SRI MICHIGAN AVENUE
VENTURE, LLC; SHORENSTEIN REALTY
SERVICES, L.P.; SHORENSTEIN MANAGEMENT,
INC.; SRI MICHIGAN AVENUE MANAGEMENT,
INC.; and SHORENSTEIN COMPANY, LLC,
Defendants/Counter-Plaintiffs,
v.
UNITED STATES FIDELITY AND GUARANTY
COMPANY,
Plaintiff/Counter-Defendant.
____________________________________
NATIONAL UNION FIRE INSURANCE COMPANY
OF PITTSBURGH, PA; SRI MICHIGAN AVENUE
VENTURE, LLC; SHORENSTEIN REALTY
SERVICES, L.P.; SHORENSTEIN MANAGEMENT,
INC.; SRI MICHIGAN AVENUE MANAGEMENT,
INC.; and SHORENSTEIN COMPANY, LLC,
Defendant/Third Party Plaintiffs,
v.
AMERICAN MOTORISTS INSURANCE COMPANY,
Third Party Defendant.

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No. 07 C 3179

MEMORANDUM OPINION AND ORDER

Before the court is National Union’s bill of costs.
filed

objections

objections.

to

the

bill,

and

USF&G

has

joined

AMICO has
in

those

For the reasons that follow, I tax the amount of

$13,759.65 against AMICO and USF&G, jointly and severally.

I tax an

additional amount, $15.80, solely against USF&G.
Federal Rule of Civil Procedure 54(d)(1) provides that “costs
other than attorneys’ fees should be allowed to the prevailing
party.”

28

U.S.C.

§

1920

specifies

recoverable pursuant to Rule 54(d)(1):

the

costs

that

may

be

(1) the fees of the clerk

and marshal; (2) fees for court reporters and transcripts; (3) fees
for printing and witnesses; (4) fees for exemplification and the
costs of making copies of papers necessarily obtained for use in the
case; (5) docket fees; and (6) compensation of court-appointed
experts and interpreters.
must determine:

When evaluating a bill of costs, a court

(1) whether the expenses are allowable under

§ 1920, and (2) whether the expenses are reasonable and necessary.
Deimer v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 345 (7th
Cir. 1995).
AMICO and USF&G argue that I should deny the bill of costs in
its entirety because this was a “mixed judgment,” in which AMICO and
USF&G prevailed on certain parts of claims.

I disagree.

Under

Federal Rule 54(d), a party “prevails” when a final judgment awards
that party substantial relief.

See Smart v. Local 702 Int’l Bhd. of

Elec. Workers, 573 F.3d 523, 525 (7th Cir. 2009).
2

When a party

obtains substantial relief, it prevails even if it does not win on
every claim.

See Slane v. Mariah Boats, Inc., 164 F.3d 1065, 1068

(7th Cir. 1999).

Here, National Union was awarded substantial

relief in my rulings relating to the certificates of insurance,
coverage issues and finally damages.

Thus, National Union is a

prevailing party and entitled to costs.
Fees for Service of Summons and Subpoena
National Union seeks $283.50 in fees for service of a summons
and a subpoena.

AMICO/USF&G object to these fees because the

service was effectuated by a private process server (and not the
federal marshal), and because National Union did not issue a request
for waiver of service under Federal Rule of Civil Procedure 4(d).
First, National Union has failed to put forward any case which
supports its position that a prevailing plaintiff must request a
waiver in order to be reimbursed for service of process.

See Marcus

& Millichap Real Estate Investment Services Inc. v. Sekulovski, No.
07

C

5369,

2010

WL

145785,

at

*8

(N.D.

Ill.

Jan.

12,

2010)

(rejecting argument that fee for service of process should be denied
because plaintiff failed to request waiver of service of process).
Turning to the private process server issue, the Seventh Circuit has
held that a party may recover for the cost of private process
servers, with some restrictions.

In Collins v. Gorman, 96 F.3d

1057, 1060 (7th Cir. 1996), the Seventh Circuit held that “[T]he
prevailing party [can] recover service costs that do not exceed the

3

marshal’s fees, no matter who actually effected service.”

The

allowable cost for service of process by the U.S. Marshals is $55 an
hour for each item served plus travel costs and any other out-ofpocket expenses.

28 C.F.R. §0.114(a)(3).

Here, National Union

seeks $195 for service of process on AMICO and $88.50 for service of
a subpoena on MCA.

Neither receipt provides an hourly breakdown, so

I will award $55 for each, totaling $110.
Court Reporter Fees
National Union seeks a total of $1,317.15 in various court
reporter fees for the deposition of George Yankwitt.

AMICO/USF&G

object to the fees because they claim that the per-page fee exceeds
$3.65, the rate established by the Judicial Conference of the United
States.

The receipt reflects that the court reporter charged

$1,098.00 for a 305 page transcript, which comes out to $3.60 per
page, which is allowable.

I decline to award the $102.15 charge

associated with “Exhibits” as National Union has not made any
argument as to why they were necessary, and whether or not it
already had copies in its possession.

“Courts should not award

‘costs associated with deposition exhibit copies unless the costs
are essential to understanding an issue in the case.’” Menasha Corp.
v. News America Marketing Instore, Inc., No. 00 C 1895, 2003 WL
21788989, at *2 (N.D. Ill. July 31, 2003) (quoting Fait v. Hummel,
No. 01 C 2771, 2002 WL 31433424, at *2 (N.D. Ill. Oct. 30, 2002)).
Likewise, the costs associated with a condensed transcript, the ETV

4

Disk and the archiving fee are not recoverable.

See Comrie v. IPSCO

Inc., No. 08 C 3060, 2010 WL 5014380, at *3 (N.D. Ill. Dec. 1,
2010); Correa v. Ill. Dept. of Corrections, No. 05 C 3791, 2008 WL
299078, at *2 (N.D. Ill. Jan. 29, 2008). I will, however, tax the
delivery charge of $8.00.

See Finchum v. Ford Motor Co., 57 F.3d

526, 534 (7th Cir. 1995) (where court labeled per diem costs and
delivery

costs

of

court

reporter

“incidental”

to

taking

of

deposition and concluded that the district court’s award of costs to
prevailing party was not abuse of discretion).

Thus, National

Union is entitled to $1106.00.
Printing Charges/Exemplification/Copying fees
Next, National Union seeks $2,520.30 for in-house printing and
$12,366.22
printing

for

from

third-party
PACER.

copying

AMICO/USF&G

and

costs

argue

that

associated
National

with

Union’s

supporting materials are insufficiently detailed to support the
amount National Union requests.

National Union’s documentation

identifies the number of pages printed or copied, the price per
page, and the total cost.

AMICO/USF&G argue that the documentation

is “incredibly obscure and extraordinarily difficult to evaluate[.]”
Resp. at 3.

But National Union’s burden is only to provide “the

best breakdown obtainable from retained records” to establish that
the costs relate to “copies made for this case for its attorneys and
billed in the normal course.”

Northbrook Excess and Surplus Ins.

Co. v. Procter and Gamble Co., 924 F.2d 633, 643 (7th Cir. 1991).

5

Keeping in mind the size and duration of this case, I conclude that
the number of copies made was reasonable and National Union’s
documentation is sufficient.
AMICO/USF&G make a few additional and more specific objections.
First, AMICO/USF&G point out that National Union’s documentation
indicates that the $2,520.30 total for “in-house printing” covers
printing charges beginning in June 2007.

AMICO argues that these

charges should not be taxed against it because it did not appear in
this

case

until

March

11,

2008.

Where

a

party

prevails

in

litigation against multiple parties, “the presumptive rule is joint
and several liability unless it is clear that one or more of the
parties is responsible for a disproportionate share of the costs.”
Anderson v. Griffin, 397 F.3d 515, 522-23 (7th Cir. 2005).

While

AMICO and USF&G were both parties in this case, they were jointly
responsible for the costs.

However, I decline to allow National

Union to recover in-house copying costs from AMICO which National
Union incurred before AMICO appeared in the case.

See Amer. Nat’l

Ins. Co. v. Citibank, F.S.B., 623 F. Supp. 2d 953, 955 (N.D. Ill.
2009) (declining to assess
incurred

prior

to

costs

intervenor’s

against

appearance

intervenor for costs
in

the

case).

The

documentation provided by National Union shows that $2,504.50 of the
in-house printing charges occurred after AMICO appeared in this
case.1

Therefore, that amount is chargeable against both AMICO and

1

AMICO/USF&G objects to certain entries that were marked
“unbilled.” I am satisfied with National Union’s explanation that
6

USF&G.

The remainder of the charges, $15.80, were incurred prior to

AMICO’s appearance, and National Union makes no argument that these
copies were ultimately produced to AMICO.

Thus, the additional

$15.80 is taxed solely against USF&G.
Turning now to the $12,366.22 requested for third-party copying
and PACER copies, National Union breaks down this amount as $128.56
for PACER copies, $966.26 for Record Copy Services and $11,271.40
for Ikon Office Solutions.2
First, AMICO/USF&G argue that PACER copies are not recoverable.
I agree.

See Swan Lake Holdings, LLC v. Yamaha Golf-Car Co., No.

3:09-CV-228, 2011 WL 1869389, at *4 (N.D. Ind. May 13, 2011) (noting
that the case law is clear that charges for PACER fall into the same
category as Westlaw and Lexis computerized research charges and are
not recoverable as costs). Thus, the charges of $128.56 are denied.

With

respect

to

the

2/25/08

invoice

for

$3,460.20

for

approximately 28,000 copies, AMICO once again argues that it should
not be taxed this amount because it did not appear in this case
until March 2008.

This time National Union provides a reason why

those entries were marked “unbilled” because those costs were
incurred too recently to have been billed at the time the Bill of
Costs was submitted to the court.
2

AMICO/USF&G also question whether certain entries are properly
included here (the Rusin Patton copies, the Circuit Court Clerk
copies and the Kathryn Feagans county law library copies). However,
National Union clarified that it did not seek reimbursement for any
of these entries.
7

AMICO should share responsibility for these charges with USF&G.
According to National Union, “the copies National Union made in
February 2008 were for documents that were responsive to AMICO’s
later production requests and produced to AMICO.”

Reply at 4.

National Union also states that this invoice was “for reproduction
of materials from the underlying defense file for production in this
case,

documents

responsive

produced to AMICO.”

to

AMICO’s

Reply at 5.

production

requests

and

I read these statements together

as stating that the 2/25/08 copies were: (1) the reproduction of
materials

from

the

underlying

defense

file

for

production

(presumably for both AMICO and USF&G) and (2) copies ultimately
given to AMICO in discovery.

Because it appears that these copies

were made in order to produce discovery to both AMICO and USF&G, I
will tax the $3,460.20 against both AMICO and USF&G, jointly and
severally.
In addition, AMICO/USF&G objects to a March 2, 2011 invoice for
$97.96, noting that discovery was completed prior to March 2011.
National Union explains that these charges cover copies made to
deliver courtesy copies in compliance with the court’s standing
order.

These charges are reasonable and recoverable.

See, e.g.,

Boyle v. Torres, No. 09 C 1080, 2011 WL 899720 (N.D. Ill. Mar. 15,
2011).
AMICO/USF&G objects that National Union is not entitled to the
charge of $1,615.10 for bates labeling.

I agree.

Nat’l Prod.

Workers Union Ins. Trust v. Life Ins. Co. of North Am., No. 05 C
8

5415, 2010 WL 2900325 (N.D. Ill. July 21, 2010) (bates labeling not
recoverable);

Gallagher

v.

Gallagher,

No.

07

2610192, at *3 (N.D. Ill. June 24, 2010) (same).

C

4196,

2010

WL

I note that there

are additional charges for bates labeling for $42.70 and $140.45,
which are also not recoverable.
Finally, I note that the 6/16/08 and 9/15/08 invoices from IKON
include charges for custom tabs, redwell folders, binders, binds,
and a cd.

National Union has not explained why such extras were

necessary, and I conclude that they are not recoverable.

See Nat’l

Prod. Workers Union Ins. Trust, 2010 WL 2900325, at *4 (concluding
that binding and tabbing are not recoverable).

Likewise, National

Union has not explained why the oversize color copies (which were
$10 per square foot), the 11x17 color copies ($2 per page) or the
8.5x11 color copies ($1.25 per page) were necessary.

Accordingly,

I will allow $10 for the 4.5 square foot oversized color print, and
allow a copy rate of $0.12 per page (which is the rate charged for
regular black and white copies) for the other color copies.
Thus, with respect to the $12,366.22 requested, I tax the
following: $3,460.20 (2/25/08 invoice), $726.88 (6/16/08 invoice),
$4,586.70 (9/15/08 invoice), $102.48 (1/28/09 invoice), $196.63
(5/5/09

invoice),

$151.40

(6/3/09

invoice),

$68.32

(5/17/10

invoice), $360.88 (5/26/10 invoice), $287.70 (8/17/10 invoice), and
$97.96 (3/2/11 invoice), thus totaling $10,039.15.
Travel Expenses

9

Finally, National Union seeks reimbursement of the costs for
its attorneys’ travel expenses to New York for the deposition of
Shorenstein’s former lawyer.

I decline to award these expenses.

National Union’s reliance on Cintas v. Perry is inapposite because
in that case I awarded the prevailing defendant reasonable costs
based on a provision in the employment contract, and was not
restricted by the federal rules on awarding costs.
907, 909 (N.D. Ill. 2007).
is

also

inapposite

as

its

494 F. Supp. 2d

The other case cited by National Union
discussion

of

reimbursement

for

an

attorney’s travel time came in the context of a discussion of
awarding attorney’s fees, not costs.

See Smith v. Great Am. Rests.,

Inc., 969 F.2d 430, 440 (7th Cir. 1992).

National Union has put

forward no authority which supports the notion that it can recoup
attorney travel expenses.
Thus, in conclusion, I tax the following amount jointly and
severally against AMICO and USF&G:

$110 (service), $ 1106 (court

reporter fees), $2504.50 (in-house copying), $10,039.15 (third-party
copying), for a total of $13,759.65.

The additional amount of

$15.80 for in-house copying is taxed solely against USF&G.

ENTER ORDER:

____________________________
Elaine E. Bucklo
United States District Judge

10

Dated: August 16, 2011

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