Huerta v. Village of Carol Stream et al

Filing 159

MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 2/4/2013.Mailed notice(sct, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALFREDO HUERTA,
Plaintiff,
vs.
VILLAGE OF CAROL STREAM, et al.,
Defendants.

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09 C 1492

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
This matter comes before the Court on the bill of costs of Defendants Village of
Carol Stream (the “Village”), Camillo Incrocci (“Incrocci”), and Peter Spizziri
(“Spizziri”) (together “Defendants”) in the amount of $10,335.37. For the following
reasons, the Court awards $8,168.37 in costs.
BACKGROUND
On November 11, 2012, following a five-day jury trial, the Court entered
judgment in favor of the Defendants on Plaintiff Alfredo Huerta’s (“Huerta”) claims for
excessive force under 42 U.S.C. § 1983, battery, and intentional infliction of emotional
distress. Defendants now submit a bill of costs in the amount of $10,335.37. The
Defendants seek to be reimbursed for the following expenditures:

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Fees for printed or electronically recorded
transcripts for use in the case:

$8,070.90

•

Fees for service of summons and subpoena:

$1,093.54

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Fees for witnesses:

$875.93

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Fees for exemplification and the costs of making
copies of materials necessary for the case:

$295.00

LEGAL STANDARD
Rule 54 creates a strong presumption that the prevailing party may recover
reasonable and necessary litigation costs from the losing party. Fed. R. Civ. P. 54(d)(1);
Deimer v. Cincinnati v. Sub-Zero Prods., 58 F.3d 341, 345 (7th Cir. 1995).
Specifically, the victor may recover: (1) fees of the clerk and marshal; (2) fees for
transcripts necessarily obtained for use in the case; (3) printing and witness fees;
(4) fees for exemplification and the costs of making copies of any materials necessarily
used in the case; (5) docket fees; and (6) compensation of court appointed experts and
interpreters. 28 U.S.C. § 1920. The prevailing party must carry the burden of showing
that the requested costs were necessary and reasonable. Trs. of the Chi. Plastering Inst.
Pension Trust v. Cork Plastering Co., 570 F.3d 890, 906 (7th Cir. 2009). If that burden
is satisfied, then the losing party must show that the costs are not appropriate. Beamon
v. Marshall & Isley Trust Co., 411 F.3d 854, 864 (7th Cir. 2005). The court retains

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wide discretion in determining the propriety of awarding costs. M.T. Bonk Co. v. Milton
Bradley Co., 945 F.2d 1404, 1409 (7th Cir. 1991).
DISCUSSION
Huerta objects to Defendants’ recovery of fees on two grounds. First, he requests
that the Court deny Defendants’ bill of costs due to his inability to pay. Alternatively,
Huerta asserts that Defendants’ bill of costs is excessive.
A court may consider a litigant’s indigence in deciding whether awarding costs
is appropriate. Badillo v. Cent. Steel & Wire Co., 717 F.2d 1160, 1165 (7th Cir. 1983).
Determining whether a litigant is sufficiently indigent is guided by a two-step inquiry.
First, the court “must make a threshold factual finding that the losing party is incapable
of paying the court-imposed costs at this time or in the future.” Rivera v. City of Chi.,
469 F.3d 631, 635 (7th Cir. 2006). This finding must be supported with an affidavit and
a schedule of expenses or other documentary evidence pertaining to the individual’s
income and liabilities. Id. If the non-prevailing party meets his initial burden, the court
must decide if awarding costs is appropriate in light of the amount of claimed costs, the
losing party’s good faith, and the closeness and difficulty of the underlying case. Id.
at 635-36.
Huerta does not submit sufficient evidence to allow the Court to find that he is
unable to pay the Defendants’ costs. In his sole evidentiary submission to the Court,

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an affidavit, Huerta attests to his having been unemployed for a year and a half, having
no income, and paying $2,500 in monthly expenses. Huerta fails to submit a schedule
of his expenses. With no documentation demonstrating his financial liabilities with any
specificity, the Court is unable to assess his indigence and, by extension, his ability to
reimburse the Defendants’ costs. See Lewis v. City of Chi., No. 04 C 6050, 2012 U.S.
Dist. LEXIS 182086, at *8 (N.D. Ill. Dec. 21, 2012). Furthermore, although currently
unemployed, Huerta fails to offer any reason why he would not be able to pay costs
sometime in the future. See Fairley v. Andrews, No. 03 C 5207, 2008 U.S. Dist. LEXIS
28325, at *11 (N.D. Ill. Apr. 8, 2008)

We accordingly find that Huerta’s claimed

indigence does not excuse him from reimbursing Defendants’ reasonable and necessary
costs.
Huerta objects to the propriety of awarding costs related to the following five
expenditures: (1) service of subpoenas on Richard Brash (“Brash”) and Angela and
Rudy Garcia; (2) deposition costs of Spizziri, Incrocci, Brian Cooper (“Cooper”), Diana
Saleh (“Saleh”), Christina Carbone-Garcia (“Carbone-Garcia”), and several doctors;
(3) attendance fees producing Brian Bradley (“Bradley”) and Kavita Shah (“Shah”) to
appear as witnesses at trial; (4) the cost of copying Huerta’s criminal records; and
(5) the witness attendance fee paid to Karly Dunow (“Dunow”).

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Huerta first challenges the fees spent to serve subpoenas on witnesses Brash and
Angela and Rudy Garcia. “[T]o award costs for service of subpoenas, the court need
only determine whether the subpoenas were reasonable and necessary when served in
light of the facts known at the time of service.” Movitz v. First Nat’l Bank of Chi., 982
F. Supp. 571, 574 (N.D. Ill. 1997). To demonstrate that subpoenas were unreasonable
or unnecessary, a plaintiff must offer evidence showing that a defendant unreasonably
believed that the testimony was necessary at the time it was sought. Id.
Huerta objects to Defendants hiring a process server to serve the subpoenas
instead of enlisting the Village’s Police Department to serve the witness at no cost.
However, Huerta points to no statute or case law addressing the propriety of denying
service fees merely because the prevailing party is a municipality. On the contrary,
courts in this district have awarded costs to municipality-defendants under similar
circumstances. See e.g., Lewis, 2012 U.S. Dist. LEXIS 182086, at *11-13. The
Defendants submit evidence in the form of an affidavit and postage indicating that a
process server was required to locate Brash and Angela and Rudy Garcia. The Court
is satisfied that the Defendants’ hiring a process server was reasonably necessary to
serve the three witnesses.
However, we find that Defendants’ costs related to service of subpoenas is
excessive. A prevailing party may have process server costs reimbursed to the extent

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that those fees do not exceed marshal’s fees. 28 U.S.C. § 1920(d)(1); Collins v.
Gorman, 96 F.3d 1057, 1060 (7th Cir. 1996). Marshal’s fees are $55 per hour plus
travel costs and out-of-pocket expenses. 28 C.F.R. § 0.114(a)(3). Defendants originally
sought to be reimbursed $288 for 3.2 hours of work at $90 an hour to serve the Garcias,
and $348.34 for 2.9 hours of work at $65 an hour to serve Brash. The reimbursement
of process servers may not exceed $55 per hour. We trim Defendants’ claimed costs
related to service of the Garcias by $176 and Brash by $29 for a total reduction of $205.
Next, Huerta objects to Defendants seeking reimbursement for the deposition
transcripts of Spizziri, Incrocci, Cooper, Saleh, Carbone-Garcia, and several doctors
who Huerta does not bother to identify in his brief. Deposition fees are recoverable
under 28 U.S.C. § 1920(2). Awarding costs for a deposition transcript hinges on
whether the transcript was reasonably and necessarily related to an issue that was
present in the case at the time the deposition was taken. See Independence Tube Corp.
v. Copperweld Corp., 543 F. Supp. 706, 718 (N.D. Ill. 1982).
Huerta argues that the award of costs for the transcripts of Spizziri, Incrocci and
Cooper should be denied because they were not used at trial and were not necessary to
impeach the witnesses since each was a Village Police Officer and would presumably
give testimony beneficial to the Defendants’ case. Huerta also asserts that Saleh’s and
Carbone-Garcia’s deposition costs should be denied because they are not referenced in

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any part of Defendants’ motion in limine or other pre-trial dispositive motions. Finally,
Huerta disputes the necessity of several doctors’ depositions not referenced in
Defendants’ motion in limine, which we denied. None of Huerta’s contentions are
persuasive, as each of these witnesses was placed on the witness call list at trial or
otherwise testified at trial. We find that this demonstrates Defendants’ belief that the
witnesses’ testimony was germane to issues underlying the case.

Absent any

countervailing evidence, we conclude that costs for the deposition transcripts were
reasonably necessary for trial preparation, and accordingly may be reimbursed.
Huerta’s objection is denied.
We nevertheless have occasion to reduce Defendants’ deposition transcript costs
for the first of two depositions of Huerta. Unless otherwise ordered by the court, a
prevailing party may recover the cost of the original transcript, a copy of same, and an
additional copy, provided that it is furnished to the court. N.D. Ill. 54.1(b). The
prevailing party may recover up to $3.65 per page. See id.; Maximum Transcript Rates,
http://www.ilnd.uscourts.gov/home/clerksoffice/CLERKS_OFFICE/CrtReporter/trns
crpt.htm.
Defendants request $1065.30 for Huerta’s first deposition transcript.

The

uncondensed transcript runs 219 pages long. This computes to a rate of approximately
$4.86 per page. Applying the $3.65 rate that a prevailing party may recover, we find

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that $799 is a reasonable amount spent for Huerta’s deposition transcript.

We

accordingly reduce Defendants’ bill of costs by $266.30.
We also deny Defendants’ bill of costs related to shipping and handling and
payment to notaries. Shipping and handling costs are ordinary business expenses and
are not recoverable. Bogan v. City of Chi., No. 09 C 3852, 2010 U.S. Dist. LEXIS
64187, at *5 (N.D. Ill. June 28, 2010). Defendants paid a total $15.00 for the shipping
and handling of two transcripts. Recovery for this cost is accordingly denied. Further,
costs related to paying notaries is denied, as reimbursement is not permitted absent an
explanation why the services of a notary were reasonably necessary. See Hackett v.
Cont’l Air Transp. Co., 09 C 4878, 2010 U.S. Dist. LEXIS 81503, at *3-4 (N.D. Ill.
Aug. 10, 2010) (collecting cases). Defendants make no effort to explain why paying
notaries was reasonably necessary for the case. Defendants paid a total of $1,618.50
for the services and travel expenses of notaries. Defendants’ bill of costs shall be
reduced by that amount.
Third, Huerta argues that costs for producing Bradley and Shah as witnesses were
unnecessary because neither was called to testify at trial. Huerta further contends that
the cost of producing Bradley to testify is unreasonable because he is an employee of
the Village’s Police Department. Whether a potential witness is an employee of the
prevailing party is irrelevant to our determination. Witness fees for a witness who did

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not testify at trial may be reimbursed if that witness’s attendance was reasonably
expected to be necessary, and if that witness was ready to testify. Haroco, Inc. v. Am.
Nat’l Bank and Trust Co. of Chi., 38 F.3d 1429, 1442 (7th Cir. 1994). Bradley’s and
Shah’s placement on the Defendants’ call list and their readiness to testify at trial
suggest that Defendants believed that their testimony would be necessary. Accordingly,
Huerta’s challenge to Defendants’ witness costs is denied.
Fourth, Huerta objects to the costs for the procurement of Huerta’s criminal
record because it was not used at trial. Exemplification costs, or those costs spent to
obtain “an official transcript of a public record, authenticated as a true copy for use as
evidence,” are reimbursable. Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 427 (7th Cir.
2000). Here, Defendants relied on Huerta’s criminal case record to obtain partial
summary judgment against Huerta prior to trial. See Huerta v. Vill. of Carol Stream,
09 C 1492, 2010 U.S. Dist. LEXIS 13907 (N.D. Ill. Feb. 18, 2010); see also Gholson
v. Lewis, , 2009 U.S. Dist. LEXIS 18517, at *17-21 (N.D. Ill. Mar. 10, 2009) (awarding
costs to prevailing defendants upon obtaining summary judgment in their favor). We
find that the records were reasonable and necessary for the case, and accordingly deny
Huerta’s objection.
Finally, Huerta objects to awarding witness fees for producing Dunow at trial.
Dunow did not testify in court due to illness, but a video recording of her deposition

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was nevertheless used at trial. The cost of producing Dunow as a trial witness was
therefore unnecessary. We reduce Defendants’ request for costs by $62.20, the witness
fee for producing Dunow as a trial witness.
CONCLUSION
For the foregoing reasons, we reduce Defendants’ bill of costs by $2167.
Defendants are entitled to recover $8,168.37.

Charles P. Kocoras
United States District Judge
Dated:

February 4, 2013

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