Inskeep v. Griffin et al

Filing 47

MOTION by Appellee Leroy G Inskeep for judgment , MOTION by Appellee Leroy G Inskeep for taxation of costs (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Steege, Catherine)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LEROY G. INSKEEP, as Trustee for )

GRIFFIN TRADING COMPANY, INC., )
)

Case No. 10-cv-01915

Plaintiff-Appellant, )

v. )
)

GRIFFIN, )
)

FARRL J. GRIFFIN and ROGER S. )

Hon. Ruben Castilo
(On Remand from the United States
Court of Appeals for the Seventh
Circuit)

)

Defendants-Appellees. )
)

PLAINTIFF'S VERIFIED MOTION FOR ENTRY OF JUDGMENT AND COSTS
Leroy G. Inskeep, not individually but solely as chapter 7 trustee for Griffin Trading

Company, Inc. ("Trustee" or "Plaintiff'), respectfully requests that the Court enter the attached

judgment order against defendants Farrel 1. Griffin and Roger S. Griffn ("Defendants"), or
alternatively remand this matter to the United States Bankruptcy Court for entry of a judgment
order, and states:

1. On January 26, 2005, the United States Bankruptcy Court for the Northern
District of Ilinois entered judgment in this case, which is docketed in the Bankruptcy Court as

Adversary No. 01 A 00007, in favor of the Trustee and against each of the Defendants in the
amount of

$4,690,071.99. On February 3, 2005, the Bankruptcy Court awarded the Trustee costs

in the amount of$3,465.45. (See Adv. Dkt. Nos. 104, 110.)

2. On January 23, 2008, this Court (the Hon. Mark Filip presiding) vacated the
judgment and remanded to the Bankruptcy Court for further proceedings. (Dist. Dkt. Case 05-C1834 at Dkt. No. 37.) On October 30, 2009, the Bankuptcy Court entered judgment for

Defendants and on February 11, 2010, denied the Trustee's Rule 59 Motion. (Adv. Dkt. Nos.

246, 273.) On October 19, 2010, this Court affrmed the second bankuptcy judgment. (Dist.

Dkt. Case 10-cv-01915 at Dkt. No. 31.)

3. On June 25, 2012, the United States Court of Appeals for the Seventh Circuit
entered its Opinion and Order, a copy of which is attached as Exhibit A, reversing this Court's
October 19, 2010 Memorandum Opinion and Order and its January 23,2008 Order and holding

that the Bankuptcy Court's original January 26,2005 judgment should have been affrmed. See
Exhibit A hereto. On August 15,2012, the Court of Appeals issued its mandate. On August 16,
2012, this Court docketed the mandate. (Dist. Dkt. Case 10-cv-01915 at Dkt. No. 45.)
4. Accordingly, the Trustee moves for entry of a judgment against each of the
Defendants in the amount of$6,850,OO1.55, calculated as of

the presentment date of

this Motion.

This amount consists of:

(a) the January 26, 2005 judgment amount affirmed by the Seventh Circuit of
$4,690,071.99; i

$3,465.45;

(b) costs awarded in the February 3, 2005 Bankuptcy Court Order of

(c) additional prejudgment interest of $2,146,678.15 calculated from January 27,
2005 through the date of

the presentment of

this Motion (August 21,2012). If

the

judgment date is after August 21,2012, additional prejudgment interest accrues at
the rate of $776.94 per day;2 and

i The Bankuptcy Court's judgment provided that the total damage award consisted of
$2,985,074.63 plus prejudgment interest of $1,704,997.36 (calculated at the rate of 9.5%) or
$776.94 per day. See Adv. Dkt. 104 and 1/26/05 Tr. at 10-11 (Group Ex. A hereto).

2 Under Delaware law, which governed this claim, prejudgment interest is mandatory and not a

matter of judicial discretion and runs through the date of the entry of the judgment. See
Moskowitz v. Mayor & Council of

Wilmington, 391 A.2d 209,219 (DeL. 1978); Bomarko, Inc. v.

Intl Telecharge, Inc., 794 A.2d 1161, 1190 (DeL. Ch. 1999). Thus, the Trustee is entitled to
receive additional prejudgment interest through the new actual judgment date at the rate the

Bankuptcy Cour awarded in the now affirmed January 26, 2005 order. Thus, the total amount
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(d) allowable costs related to the second trial in the Bankuptcy Court of
$9785.96. See Perlman v. Zell, 185 F.3d 850 (7th Cir. 1999) (holding that a
defendant who prevails on appeal after losing at trial is entitled to statutory costs
related to the underlying trial).

5. The $9,785.96 in additional costs that the Trustee requests be included in the
judgment order fall within Rule 54(d)(1) and Fed. R. Bank. P. 7054. These rules provide that
costs "shall be allowed as of course to the prevailing party. . .." Fed. R. Civ. Pro. 54(d)(1); Fed.

the Judicial Code lists the specific costs oflitigation which

R. Bank. Pro. 7054. Section 1920 of

may be taxed pursuant to Rule 54. These costs include: 1) the costs of the Clerk of the Court
the court reporter for all transcripts necessarily obtained for use

and the U.S. Marshall; 2) fees of

in the case; 3) fees and disbursements for witnesses; 4) fees for certification of and copying
papers necessarily obtained for use in the case; 5) docket fees; and 6) fees of court appointed

experts. 28 U.S.c. § 1920.

6. The Trustee has incurred the following additional costs which are recoverable

under Section 1920 and Rule 54:
A. Clerk of

the Court Fees: The Trustee paid $710.00 to the Clerk of

this Court for

the two appeals (to this Court and to the Seventh Circuit). Copies of these

receipts are attached hereto as Group Exhibit B.
B. Trial Transcript: The Trustee incurred $550.00 in costs obtaining copies of the

trial transcript for the second triaL. A copy of the court reporter's invoice is

attached hereto as Exhibit C and incorporated herein by reference. The trial

of prejudgment interest is $3,851,675.51, consisting of the $1,704,997.36 earned between
December 23, 1997 and January 26, 2005 and the $2,146,678.15 earned from January 27,2005
through August 21,2012 on the judgment amount of$2,985,074.63.
-3-

transcripts were reasonably necessary to this litigation because they were needed
to prepare the post-trial briefs submitted to the Bankruptcy Court.

C. Copying and Exhibit Charges: The Trustee incurred $1,386.53 in costs II
connection with copying trial exhibits for the Court and the defendants and for
use at triaL. The receipts show the number of pages copied and the rate charged.
See, e.g., Northbrook Excess and Surplus Ins. Co. v. Proctor & Gamble Co., 924
the invoiceslinternal duplicating records

F.2d 633, 643 (7th Cir. 1991). Copies of

in support of

these expenses are attached hereto as Group Exhibit D.

D. Translation Costs: The Trustee incurred $321.60 translating trial exhibits from
German to English. A copy of the invoice for this charge is attached as Exhibit E.
E. Witness Fees: The Trustee incurred $6,817.83 in travel costs and expenses to

bring Michael Hoffman, who works for the successor to MeesPierson and resides

in Europe to come to testify at triaL. Copies of the invoices for his travel and
related expenses are attached hereto as Group Exhibit F and incorporated herein

by reference. Normal travel expenses of witnesses are taxable as costs under 28

U.S.C. § 1920; see State of Ilinois v. Sangamo Construction Co., 657 F.2d 855,
865 (7th Cir. 1981).
7. The total costs the Trustee requests are:

Clerk Fees

$710.00

Hearing Transcript

$550.00

Duplicating Costs

$1,386.53

Translation Costs

$321.60

Witness Travel Fees

$6.817.83

TOTAL

$9,785.96

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8. As set forth in the Trustee's Verification, which is attached hereto as Exhibit E,

each of these charges was reasonably necessary to the conduct of the litigation in this case and
were actually incurred
9. Because the Court of Appeals remanded this matter to this Court, it would be

appropriate for this Court to enter judgment. Alternatively, the Trustee requests that the Court

remand this matter to the Bankuptcy Court for entry of a final judgment order. Defendants

admitted this was a "core" proceeding in their Answer (see Adv. Dkt. 18 at ~ 5) and
acknowledged that the Bankuptcy Court entered a final judgment order with the consent of the
paries in their Seventh Circuit jurisdictional statement. (See 7th Circuit Case NO.1 0-3607 Dkt
No. 26 at 1.)3

3 Specifically, Defendants stated: "Since no party objected to the bankuptcy court entering a

jurisdiction to do so under 28 U.S.C. § 157(c)(2). See Stern v. Marshall,
U.S. _,2011 WL 2472792, *12 (June 23, 2011) (under § 157(c)(2), parties may consent to entry
final

of

judgment, it had

final

judgment in non-core case)." (See 7th Circuit Case No. 10-3607 Dkt. No. 26 at 1.)
-5-

WHEREFORE, the Trustee respectfully requests that the Court:
A. Enter the attached Judgment Order (Exhibit G); or
B. Alternatively refer this matter to the Bankuptcy Court for entry of a judgment

(Exhibit H) ; and
C. Grant such other relief as may be just.

LEROY G. INSKEEP, as Trustee for GRIFFIN
TRADING COMPANY, INC.

Dated: August 16, 2012

By: s/ Catherine Steege
One of his Attorneys

Catherine Steege (ARDC No. 6183529)
Melissa Hinds (ARDC No. 6288246)

JENNER & BLOCK LLP
353 North Clark Street
Chicago, IL 60654
Tel: [phone]
Fax: [phone]

-6-

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LEROY G. INSKEEP, as Trustee for
GRIFFIN TRADING COMPANY, INC.,

)
)
)
)
)

Plaintiff,
v.

Case No. 10-cv-01915

Hon. Ruben Castillo

)

FARREL J. GRIFFIN and ROGER S.
GRIFFIN,
Defendants.

)
)

)
)
)

TRUSTEE'S VERIFICATION

I, Leroy G. Inskeep, hereby declare under penalty of perjury, that I have read the
foregoing Trustee's Verified Motion For Entry of Judgment and Costs and that the foregoing is
true and correct.

lsi Leroy G. Inskeep
Leroy G. Inskeep