Serwatka et al v. City of Chicago et al

Filing 80

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 5/24/2011.Mailed notice.(jlj)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARC SERWATKA,
Plaintiff,
vs.
CITY OF CHICAGO, HEIDI HIHN, JOHN
RODRIGUEZ, DAVID MAKARZYK, and MARVIN
DONLEY,
Defendants.

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08 C 5616
Judge Feinerman

MEMORANDUM OPINION AND ORDER
Plaintiff Marc Serwatka brought this action under 42 U.S.C. § 1983 against the City of
Chicago, police officers Heidi Hihn, David Makarzyk, and John Rodriguez, and lockup keeper
Marvin Donley. Serwatka alleged that the individual defendants improperly failed to provide
him with medical care immediately following his custodial arrest for battery—an arrest resulting
from Serwatka’s violent fight with a neighbor—and during a several-hour stay in police lockup.
The jury returned a verdict for Defendants. Doc. 73. Defendants timely filed a bill of costs,
which seeks recovery of $7,711.87.
Recoverable costs include (1) “[f]ees of the clerk and marshal”; (2) fees for transcripts
“necessarily obtained for use in the case”; (3) “[f]ees and disbursements for printing and
witnesses”; (4) “[f]ees for exemplification and the costs of making copies of any materials where
the copies are necessarily obtained for use in the case”; (5) docket fees; and (6) “[c]ompensation
of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs
of special interpretation services.” 28 U.S.C. § 1920. “Although a district court has discretion

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when awarding costs, the discretion is narrowly confined because of the strong presumption
created by [Federal] Rule [of Civil Procedure] 54(d)(1) that the prevailing party will recover
costs.” Contreras v. City of Chicago, 119 F.3d 1286, 1295 (7th Cir. 1997) (internal quotation
marks and citation omitted). Serwatka agrees that Defendants are the prevailing parties, but has
five objections to the costs they seek.
A. Hihn Deposition Transcript
Local Rule 54.1(b) provides that “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[,] unless some other rate was previously
provided for by order of court.” Serwatka argues that the $217.25 sought for the cost of Officer
Hihn’s deposition transcript exceeds the $3.65 per-page rate set by the Judicial Conference, and
therefore that the charge should be reduced to $200.75. Defendants do not object to the
reduction, so the bill of costs is reduced by $16.50.
B. Court Reporter Appearance Fees
Although not specifically mentioned in § 1920, reasonable appearance fees for court
reporters at depositions are recoverable under § 1920(2). See Held v. Held, 137 F.3d 998, 1002
(7th Cir. 1998). Serwatka objects to $543.00 sought for appearance fees because, when
combined with the per-page cost of the associated depositions, the appearance fees drive the
transcript costs over the Judicial Conference’s per-page limit. The objection is well-taken. See
Fletcher v. Chicago Rail Link, LLC, 2007 WL 4557816, at *1 (N.D. Ill. Dec. 20, 2007); Higbee
v. Sentry Ins. Co., 2004 WL 1323633, at *2 (N.D. Ill. June 11, 2004); Rogers v. City of Chicago,
2002 WL 423723, at *3 (N.D. Ill. Mar.15, 2002). The reduction requested by Serwatka is
granted, except for a $100 appearance fee for the Mitchell Lutzer deposition. Although
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Defendants were invoiced for that fee, it does not appear in the bill of costs, which seeks only
the maximum available charge for the Lutzer deposition (32 pages at $3.65 per page, or
$116.80). The bill of costs therefore is reduced by $443.00.
C. Exemplification of Photographs
Exemplification fees may be recovered for the reproduction, enhancement, enlargement,
or other modification of exhibits for presentation at trial. See Cefalu v. Vill. of Elk Grove, 211
F.3d 416, 428 (7th Cir. 2000). In determining whether the exemplification of a particular piece
of evidence was “necessarily obtained for use in the case,” 28 U.S.C. § 1920(4), “the judge
might consider … whether the nature and context of the information being presented genuinely
called for the means of illustration that the party employed. In other words, was the
exemplification vital to the presentation of the information or was it merely a convenience or,
worse, an extravagance?” Cefalu, 211 F.3d at 428-29. “Exemplification that was not reasonably
necessary to the presentation of one’s case to the courts does not qualify for reimbursement
under section 1920(4).” Id. at 429.
Serwatka objects to the recovery of $1,221.50 in costs incurred by Defendants in
enlarging and laminating five post-arrest photographs of Serwatka. Three of the photographs
depict Serwatka’s face and injuries to his body. Those exemplifications were reasonably
necessary, as they vividly demonstrated to the jury what the individual defendants observed
following Serwatka’s arrest regarding his physical condition and need (or lack thereof) for
medical attention. Serwatka contends that less expensive means of presenting the photographs
were available, such as the projector system used at trial to present other photographs. But while
§ 1920(4) “does not obligate the losing party to pay for victor’s glitz,” “[s]o long as the means of
presentation furthers the illustrative purpose of an exhibit … it is potentially compensable as
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exemplification.” Id. at 428 (internal quotation marks omitted). Defendants reasonably could
have concluded that the enlarged photographs were necessary to show the jury precisely what the
individual defendants observed when Serwatka was arrested and placed in the lockup. Costs for
those photographs therefore may be recovered.
The two photographs of Serwatka’s tattoos are a different matter. The tattoos were not
central to the jury’s consideration of any issue in the case and fairly can be characterized as an
extravagance. The costs for enlarging those two photographs cannot be recovered. As the bill of
costs does not itemize the exemplification costs for each photograph, Defendants are awarded
$732.90 (60%) of the $1,221.50 in exemplification fees they seek.
D. Private Process Servers
The costs of serving subpoenas are recoverable under § 1920(1), but fees charged by
private process servers may not exceed the rate charged by the Marshal Service, see Collins v.
Gorman, 96 F.3d 1057, 1059-60 (7th Cir. 1996), which currently is $55.00 per hour or portion
thereof, see 28 C.F.R. § 0.114(a)(3). Defendants seek to recover $1,684.02 in fees charged by
private process servers for serving thirteen subpoenas. Noting that the bill of costs fails to
itemize the hours expended or the hourly rate charged by the process servers, Serwatka argues
that the costs should be excluded in their entirety or, alternatively, that Defendants should be
awarded the minimum amount charged by the Marshal, $55.00 for each subpoena served, for a
total of $715.00 (thirteen multiplied by $55.00). Defendants reply that the process server
invoices attached to the bill of costs show that the fees were actually incurred. But because the
invoices do not specify the time spent or hourly rate charged by the process servers, it cannot be
determined whether the rates they charged exceeded the maximum allowable rate.

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Although costs occasionally are denied in their entirety when a party fails to set forth the
hours worked and rates charged by private process servers, see Budford v. City of Chicago, 2010
WL 522656, at *2 (N.D. Ill. Feb. 8, 2008), the more prevalent course is to simply award $55 per
served person, the minimum amount charged by the Marshal, see, e.g., Sanglap v. LaSalle Bank,
194 F. Supp. 2d 798, 802 (N.D. Ill. 2001); Shanklin Corp. v. Am. Packaging Mach., Inc., 2006
WL 2054382, at *5 (N.D. Ill. July 18, 2006); Askew v. City of Chicago, 2006 WL 1005167, at *3
(N.D. Ill. Apr. 12, 2006); Bilal v. BP Am. Inc., 2006 WL 850849, at *2 (N.D. Ill. Mar. 24, 2006).
Because Defendants undoubtedly expended funds for serving the thirteen subpoenas, the
minimum rate will be awarded, resulting in the recovery of $715.00 of the $1684.02 sought for
costs of service.
E. Pretrial Conference and Trial Transcripts
Section 1920(2) permits the recovery of “[f]ees for printed or electronically recorded
transcripts necessarily obtained for use in the case,” including transcripts of trial and other court
proceedings. In determining whether transcripts are necessary, the court examines the facts
known at the time the prevailing party ordered the transcripts, awarding costs where the
transcripts were “reasonably necessary.” Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 455
(7th Cir. 1998). “[A]lthough courts may not tax the costs of transcripts … provided merely for
the convenience of the requesting attorney, a transcript need not be absolutely indispensable in
order to provide the basis of an award of costs.” Majeske v. City of Chicago, 218 F.3d 816, 825
(7th Cir. 2000) (citation and internal quotation marks omitted).
Serwatka objects to Defendants’ recovery of $812.00 in costs for the preparation of
hourly transcripts during trial on March 14 and 15, 2011. The objection is valid because hourly
transcripts were not reasonably necessary. Costs associated with the preparation of daily
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transcripts may be recovered where the trial is lengthy and complex. See id. at 825 & n.3. But
such costs are denied where the case is short and simple. See Bogan v. City of Chicago, 2010
WL 2635789, at *2-3 (N.D. Ill. June 28, 2010); Shanklin Corp., 2006 WL 2054382 at *2; Ernst
v. Anderson, 2006 WL 163024, at *2 (N.D. Ill. Jan.18, 2006). The trial in this case was short,
straightforward, and relatively simple. Defendants did not need daily or hourly transcripts to
allow them to construct effective cross-examinations or closing argument. Because Defendants’
ordering of hourly transcripts during trial was a matter of convenience and not necessity, those
costs may not be recovered.
Serwatka also objects to the recovery of $93.00 in additional costs associated with
Defendants’ request for an expedited transcript of the pretrial conference. Serwatka contends
that an expedited transcript was unnecessary because the pretrial conference took place on
February 23, 2011, well before trial was to commence on March 14, 2011. Defendants reply that
they needed an expedited transcript to review the court’s ruling on a particular hearsay issue in
preparation for a possible motion for reconsideration or offer of proof at trial. Defendants have
the better argument. Although there were almost three weeks between the pretrial conference
and trial, the hearsay issue was relatively important, affecting the credibility of Serwatka’s claim
that he had requested medical attention from the individual defendants. At the time the
expedited transcript was ordered, Defendants reasonably could have concluded that an expedited
transcript was necessary for them to effectively deal with the hearsay issue.
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Serwatka’s objections to Defendants’ bill of costs are allowed in part and overruled in
part. Defendants’ request for $7,711.87 in costs is reduced by $16.50 for the Hihn deposition
transcript, $443.00 for the court reporter appearance fees at various depositions, $488.60 for the
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exemplification of the two photographs of Serwatka’s tattoos, $969.02 for the service of
subpoenas, and $812.00 for hourly trial transcripts—resulting in allowable costs of $4,982.75.

May 24, 2011
United States District Judge

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