Dual-Temp of Illinois, Inc. v. Hench Control Corporation et al

Filing 327

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 6/23/2015:Mailed notice(rth, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DUAL-TEMP OF ILLINOIS, INC., an Illinois
Corporation
Plaintiff,

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v.
HENCH CONTROL CORPORATION, a
California corporation, HENCH
CONTROL, INC., a California corporation,
and CAESAR-VERONA, INC., a Washington
corporation,
Defendants.

Case No. 09 cv 00595
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Before the Court are plaintiff Dual-Temp of Illinois, Inc.’s (“Dual-Temp”) motion to
quantify interest [280], Dual-Temp’s Bill of Costs [288], defendants Caesar-Verona, Inc. and Hench
Control, Inc.’s (“defendants”) Federal Rule of Civil Procedure 68(d) motion for award of costs
[292], defendants’ motion to disallow plaintiff’s Bill of Costs [293], and Dual-Temp’s motion for
instructions and for extension of time [315]. For the reasons that follow, the Court grants in part
and denies in part the parties’ motions.
Background
Following a bench trial, the Court issued its Memorandum Opinion and Order (“Order”)
finding in Dual-Temp’s favor and against all named defendants. The Court entered judgment in the
amount of $113,500.00 “plus interest accruing and attorneys’ fees.” (Dkt. 278). When Dual-Temp
filed its Motion to Quantify Interest [280], defendants objected, arguing that the judgment form
[279] denied prejudgment interest. The Court found that there was a discrepancy between the Order
and the judgment form that was the result of clerical error. (Dkt. 303.) The Court further found that,
in accordance with the practice of the Seventh Circuit, the Court intended to award prejudgment

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interest to Dual-Temp. (Id.) However, because defendants already had filed their appeal of the
opinion, order, and judgment, Dual-Temp had to seek leave from the Seventh Circuit before this
Court could correct its judgment. (Id.) The Seventh Circuit remanded the case back to this Court
after finding that an appeal was not ripe because final judgment had not been entered where the
Court needed to resolve the issue of quantifying prejudgment interest. Dual-Temp of Illinois, Inc. v.
Hench Control, Inc., 777 F.3d 429, 430 (7th Cir. 2015). The parties’ various motions related to interest,
fees, and costs are now before the Court.
Legal Standard and Discussion
I. Interest
A. Prejudgment
The Court found Dual-Temp’s breach of contract claim meritorious and issued a judgment
in Dual-Temp’s favor in the amount of $113,500. Dual-Temp argues that, based on the provisions
of the contract, the Court should calculate prejudgment interest at a rate of 1.5% per month either
from the date that it demanded payment from defendants, January 6, 2009, or the date that DualTemp filed its complaint, January 30, 2009. 1
The decision to award prejudgment interest and the amount of interest to apply are left to
the discretion of the Court. United States v. Bd. of Educ. of Consol. High Sch. Dist. 230, Palos Hills, Ill.,
983 F.2d 790, 799 (7th Cir. 1993). While Dual-Temp asserts that this Court should look to the
contract to quantify the prejudgment interest, “federal courts look to state law to determine the
availability of (and rules for computing) prejudgment interest.” Medcom Holding Company v. Baxter
Travelnol Labs., Inc., 106 F.3d 1388, 1405 (7th Cir. 1997). In Illinois, the merger doctrine provides that

The Court acknowledges that defendants object to Dual-Temp’s motion. However, defendants’ argument that the
motion does not meet the requirements of a Rule 59(e) motion to reconsider is misplaced where the court heard
argument on this issue and subsequently sua sponte treated Dual-Temp’s motion to quantify interest as a motion to
correct the Judgment in a Civil Case pursuant to Rule 60(a). (See Dkt. 303.)
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when a judgment based on a contract is obtained, the contract becomes merged into the judgment.
See Poilevey v. Spivack, 857 N.E.2d 834, 836 (Ill. App. Ct. 2006). The parties are therefore bound by
the judgment. Id. Dual-Temp has not cited and the Court has not found any authority holding that a
contractual prejudgment interest rate does not merge with the judgment. In Illinois, the prejudgment
interest rate is controlled by the Illinois Interest Act. See 815 ILCS 205/2. Therefore, the Court
awards Dual-Temp prejudgment interest at the statutory rate of 5% per annum. Id.
Turning to the question of accrual date, Dual-Temp asks for the prejudgment interest rate to
be calculated from January 6, 2009, the date they demanded payment from defendants.
“[P]rejudgment interest typically accrues from the date of loss or the date on which the claim
accrued” in order to “put a party in the position that it would have been in had it been paid
immediately.” Am. Nat. Fire Ins. Co. v. Yellow Freight Sys., Inc., 325 F.3d 924, 935 (7th Cir. 2003); see
also Milwaukee v. Cement Div., National Gypsum Co., 515 U.S. 189, 195 (1995) (“The essential rationale
for awarding prejudgment interest is to ensure that an injured party is fully compensated for its
loss”). Here, Dual-Temp’s claim accrued on the date of its demand. Assessing suffered loss from
non-payment on the demand date to the date of judgment would put Dual-Temp in the position it
would have been had defendants made immediate payment on demand.
Thus, the Court finds that prejudgment interest will begin accruing on January 6, 2009 and that
prejudgment interest will be compounded. See e.g., Am. Nat. Fire Ins. Co., 325 F.3d at 937-38 (stating
that compound prejudgment interest is the norm in federal litigation).
B.

Postjudgment Interest

Dual-Temp also seeks $125.14 per day, compounded annually, from October 1, 2014, in
postjudgment interest until the judgment, costs, and fees are fully satisfied. “While state law applies
to an award of prejudgment interest in diversity suits, federal law governs the award of postjudgment interest in cases such as this one [a diversity suit].” Travelers Ins. Co. v. Transport Ins. Co., 846

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F.2d 1048, 1053 (7th Cir. 1988). Pursuant to 28 U.S.C.A. § 1961(a), the postjudgment interest rate
shall be determined using the Treasury Bill rate prevailing on September 30, 2014, the date that
judgment was entered in a sum certain, and shall be compounded annually. 28 U.S.C. § 1961 (b); see
also, Fishman v. Estate of Wirtz, 609 F. Supp. 982, 988-89 (N.D. Ill. 1985) (citing Fed. R. Civ. P. 58 and
finding that the district court would award postjudgment interest from the date the court rendered
judgment in a sum certain), aff’d on other grounds, rev’d on other grounds, vacated in part 807 F.2d 520. The
parties are instructed to submit a proposed order that includes the quantified prejudgment and
postjudgment interest consistent with this court's ruling.
II.

Costs
Dual-Temp seeks $25,962.44 in costs from defendants. At the outset, the Court notes that

Dual-Temp incorrectly added the amounts listed on its bill of costs and that the proper sum total is
$26,457.44. Defendants argue that this bill of costs must either be entirely disallowed or that certain
amounts must be stricken and the bill reduced to $10,541.34.
Federal Rule of Civil Procedure 54(d) provides that a prevailing party is entitled to recover
its costs. “Prevailing party” means “the party in whose favor judgment has been entered.” Republic of
Tobacco Co. v. N. Atl. Operating Co., 481 F.3d 442, 446 (7th Cir. 2007). With no dispute from
defendants, the Court finds that Dual-Temp is a prevailing party. The Seventh Circuit has held that
costs “must be awarded to a prevailing party unless one of the recognized situations warranting a
denial of costs is present.” Mother & Father v. Cassidy, 338 F.3d 704, 709–10 (7th Cir. 2003) (noting
that denial is warranted only in situations involving misconduct of the party seeking costs or where
the losing party is indigent).
Under 28 U.S.C. § 1920, a court may tax the following expenses as costs: (1) fees of the clerk
and marshal; (2) fees for printed or electronically recorded transcripts necessarily obtained for use in
the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and the

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costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) docket fees under section 1923; and (6) compensation of court appointed experts, compensation
of interpreters, and salaries, fees, expenses, and costs of special interpretation services under Section
1928. See Id.; 28 U.S.C. § 1920. The party seeking an award of costs carries the burden of showing
that the requested costs were necessarily incurred and reasonable. Trs. Of the Chi. Plastering Pension
Trust v. Cork Plastering, Co., 570 F.3d 890, 904–5 (7th Cir. 2008). Costs incurred merely for the
convenience of the prevailing party may not be recovered. Barber v. Ruth, 7 F.3d 636, 645 (7th Cir.
1993). The Court will consider each of defendants’ objections to Dual-Temp’s bill of costs in turn.
A. Transcript Costs
The costs associated with deposition transcripts and copies are recoverable where they are
“necessarily obtained’ for use in the case. See 28 U.S.C. §§ 1920(2), (4). Whether a cost is necessary
must be made in light of the facts known at the time of the deposition. Mother & Father, 338 F.3d at
712.
Defendants object to the $809.52 that Dual-Temp seeks to recover for costs that were paid
to IKON Office Solutions for “CD Master, e-label endorsement, and image conversion.” DualTemp does not respond to defendants’ objection. The Court finds that Dual-Temp may not recover
these costs as they were merely for the attorneys’ convenience. See e.g., Weeks v. Samsung Heavy Indus.
Co., 126 F.3d 926, 946 n.11 (7th Cir. 1997).
Next, defendants object to discrepancies in the deposition costs for four witnesses: Milord,
Bures, Ariano, and Polcyn. They argue that these amounts are unreliable and should not be awarded
because Dual-Temp seeks reimbursement for two payments for each witness, yet they were deposed
only once. Dual-Temp provided invoices and copies of checks for these witnesses’ depositions. The
invoices for these witnesses show that two different categories of amounts were billed to DualTemp: an amount for the deposition itself and an amount for the original transcript of the

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deposition. Dual-Temp utilized various vendors for its depositions and this particular vendor
appears to have separated out the fees. These costs are allowed as necessarily incurred for litigation.
B. Copying Costs
Defendants object to the $3,486 that Dual-Temp seeks for copies of deposition transcripts
for the Court and Dual-Temp’s counsel. A prevailing party is not required to provide a detailed
explanation for the necessity of each page copied; it must, however, provide the best breakdown of
copying costs from retained records. Trading Tech. Int’l. Inc. v. eSpeed, Inc., 750 F. Supp. 2d 962, 979
(N.D. Ill. 2010) (Schenkier, J.) (citing Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924
F.2d 633, 644 (7th Cir. 1991). Here, Dual-Temp seeks a total of $3,486 for making two copies of
deposition transcripts, one for counsel and one for the Court. According to Dual-Temp’s
itemization, it received original transcripts of all depositions. Dual-Temp also seeks costs for two
additional copies for counsel and the Court at $0.50 per page, which Defendants argue is excessive.
Dual-Temp does not explain who made the copies and did not provide evidence that these copy
charges were actually incurred or paid. In the Court’s discretion, because Dual-Temp provided a
detailed ledger showing the number of pages copied and the nature of the documents copied, the
Court will not strike this cost entirely. Rather, the Court will reduce the copy costs to $0.15 per page.
See e.g., Kaplan v. City of Chicago, No. 05 C 2001, 2009 U.S. Dist. LEXIS 57834, *11 (N.D. Ill. July 6,
2009) (Leinenweber, J.) (courts in the Northern District of Illinois have found photocopying costs
between $0.10 and $0.20 per page to be reasonable). The Court also finds that because Dual-Temp
had original transcripts, an additional copy for counsel was merely for counsel’s convenience and
was not necessarily incurred. Costs for the counsel transcript copy are also stricken. Dual-Temp’s
copying costs are therefore reduced from $3,486 to $522.90.
C. Witness Fees

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Dual-Temp seeks $537.61 in witness fees. Defendants object that the ledger indicating the
amount of witness fees along with an attorney affidavit that the costs were correct and necessarily
incurred is insufficient documentation to support the expense. Defendants also object that there are
two witness fees listed for Ariano but he was deposed only once. Dual-Temp claims that one of the
fees is the standard $40 witness fee and the other amount of $61.99 was for mileage. However,
Dual-Temp provides no documentation supporting this distinction. Moreover, none of the other
“subpoena/witness fee” amounts provided in Dual-Temp’s ledger lists this “standard” witness fee
or distinguishes between that fee and standard mileage. Dual-Temp failed to provide the itemization
information required by the form Bill of Costs, including the city and state of residence of the
witness and costs for attendance, subsistence, and mileage. Due to this lack of clarity, the Court
finds that the $537.61 requested for witness fees is stricken.
D. Other Costs
Defendants object to the $3,996.56 that Dual-Temp seeks as travel costs to take depositions
in California. Absent some other statutory authority, costs available to a prevailing party under Rule
54(d)(1) are limited to those specified in 28 U.S.C. § 1920. Attorney travel expenses for depositions
are not listed as a recoverable cost; therefore they are not recoverable. See Wahl v. Carrier Mfg. Co.,
Inc. 511 F.2d 209, 217 (7th Cir. 1975). Dual-Temp has not cited any authority to support their
contention that, under these facts, they are entitled to an attorney’s travel costs. Dual-Temp’s bill of
costs will be reduced by $3,996.56. 28 U.S.C. § 1920; see also Commissioners of Highways of Towns of
Annawan v. U.S., 653 F.2d 292, 298 (7th Cir. 1981). In sum, Dual-Temp’s Bill of Costs will be
reduced to $20,591.15.
III.

Fees
Dual-Temp filed a motion for instructions in which it asked the Court to determine whether

it sufficiently produced representative business records in accordance with Local Rule 54.3, which

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governs the process for the award of attorney fees. However, Dual-Temp did not include the
records with its filing. Under the local rule, the Court may, in its discretion, forego compliance with
the process set out in LR 54.3. See Local Rule 54.3. Therefore, the Court orders Dual-Temp to file
its motion for attorneys’ fees within 21 days of this Order. Defendants’ response is due 14 days
thereafter and Dual-Temp’s reply is due 7 days thereafter. The Court will then take the matter under
advisement and issue an order within 30 days.
Conclusion
The Judgment in a Civil Case [279] is corrected such that it is consistent with the
Memorandum Opinion and Order [280] to provide that prejudgment interest is awarded. The Court
awards prejudgment interest at a rate of 5% per annum, compounded annually, from January 9,2 009
to September 30, 2014. The Court grants in part and denies in part Dual-Temp’s bill of costs [288],
and awards $20,591.15 in costs to Dual-Temp. Defendants’ motions regarding costs [292 and 292]
are denied. Dual-Temp’s motion for instructions and extension of time [315] is denied and the
parties are instructed to proceed as set forth in this order. Dual-Temp is ordered to file its proposed
order quantifying prejudgment and postjudgment interest, and its motion for attorneys’ fees within
14 days of this Order.

IT IS SO ORDERED.
___________________
Date: June 23, 2015
____________________________
Sharon Johnson Coleman
United States District Judge

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