Midwest Fence Corporation et al v. United States Department of Transportation et al
Filing
533
For the reasons stated in the attached memorandum opinion and order, the Court grants in part and denies in part both bills of costs. For the Tollway Defendants, the Court taxes against Midwest $16,577.26 in costs, comprising: $15,040.7 0 in court reporting and transcript costs; $1,320.16 in electronic discovery costs; and $216.40 in third-party discovery costs. For the IDOT Defendants, the Court taxes against Midwest $26,333.25 in costs, comprising: $11,124.80 in court reporting and transcript costs; $11,054.75 in subpoena and service of process costs; and $4,153.70 in document production costs. Signed by the Honorable Harry D. Leinenweber on 3/29/2018:Mailed notice(maf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MIDWEST FENCE CORPORATION,
Plaintiff,
Case No. 10 C 5627
v.
Judge Harry D. Leinenweber
THE UNITED STATES DEPARTMENT
OF TRANSPORTATION, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Defendants Illinois Department of Transportation (“IDOT”) and
Illinois State Toll Highway Authority (“Tollway”) filed Motions to
recover bills of cost.
(ECF Nos. 506-09, 518.)
For the reasons
stated herein, the Court grants in part and denies in part both
Motions.
I.
Plaintiff
Midwest
BACKGROUND
Fence
is
a
specialty
contractor
that
typically bids on guardrail and fencing construction projects as a
subcontractor.
advantages
in
Defendants administer state programs that offer
highway
construction
Business Enterprises (“DBEs”).
contracting
to
Disadvantage
DBEs are small businesses owned
and managed by individuals who are both socially and economically
disadvantaged and who have historically faced discrimination in
the construction industry.
Midwest Fence — which does not qualify
as a DBE — sued Defendants on the theory that the DBE programs
violate Midwest’s Fourteenth Amendment right to equal protection
under the law.
finding
interest
that
in
The Court granted summary judgment for Defendants,
the
DBE
remedying
programs
a
serve
history
construction contracting.
of
a
compelling
discrimination
governmental
in
highway
Midwest Fence Corp. v. United States
Dep’t of Transp., 84 F.Supp.3d 705, 740 (N.D. Ill. 2015), aff’d,
840 F.3d 932 (7th Cir. 2016).
The Seventh Circuit affirmed.
After the Seventh Circuit issued its ruling, the IDOT and
Tollway Defendants renewed their respective Motions to recover on
bills of costs.
(ECF Nos. 506-09, 518.)
However, Midwest Fence
then petitioned the Supreme Court for certiorari, and this Court
stayed the bills of costs while that petition pended.
The Supreme
Court has since denied certiorari, so this Court turns at last to
the Defendants’ respective bills of costs.
II.
Federal
Rule
of
Civil
LEGAL STANDARD
Procedure
54(d)(1)
provides
that
a
prevailing party may obtain reimbursement for certain litigation
costs at the conclusion of a lawsuit.
The Rule establishes a
“presumption that the prevailing party will recover costs, and the
losing party bears the burden of an affirmative showing that taxed
costs are not appropriate.”
Beamon v. Marshall & Ilsley Trust
- 2 -
Co., 411 F.3d 854, 864 (7th Cir. 2005) (citing M.T. Bonk Co. v.
Milton
Bradley
evaluating
determine
an
Co.,
945
F.2d
application
whether
the
1404,
for
claimed
1409
costs,
(7th
the
expenses
Cir.
Court
are
1991)).
must
City
of
Chi.,
omitted).
award.
218
F.3d
816,
824
(7th
first
recoverable
second, whether the costs requested are reasonable.
Cir.
In
and,
Majeske v.
2000)
(citation
The Court has “wide latitude” in fixing a reasonable
Deimer v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341,
345 (7th Cir. 1995).
III.
ANALYSIS
As an initial matter, Midwest Fence raises several generic
fairness objections that it contends cut against the Defendants’
ability to recover costs in this case.
objections
now
sought-after
before
costs.
considering
First,
The Court dispatches those
the
Midwest
specifics
Fence
says
of
Defendants’
that
when
the
Defendants argued against certiorari at the Supreme Court, they
reversed course and argued a position contrary to the one they
argued at trial.
Supreme
Court’s
From this, Midwest Fence concludes that the
subsequent
denial
of
certiorari
signaled
that
Court’s approval of Defendants’ newly reversed position — which,
according to Midwest Fence, mirrored its own position at trial —
and so Midwest should no longer be declared the loser and thus
susceptible to taxation for costs.
- 3 -
No analysis of Defendants’
litigation
positions
necessary here.
. . .
a
denial
(whether
consistent
or
otherwise)
is
The Supreme Court “has rigorously insisted that
[of
certiorari]
carries
with
it
no
implication
whatever regarding the Court’s views on the merits of a case which
it has declined to review. The Court has said this again and
again;
again
and
again
the
admonition
has
to
be
repeated.”
Maryland v. Baltimore Radio Show, 338 U.S. 912, 919 (1950).
A
denial of certiorari does not sprinkle holy water on any position
argued below, and Midwest Fence is wrong to suggest otherwise.
Next, Midwest Fence argues Defendants’ discovery costs should
have been far less than they were because Defendants were always
required to be in compliance with the Equal Protection Clause and
so, Midwest concludes, Defendants were required to have evidence
of that compliance on hand before this suit ever got started.
Midwest cites no authority for this position and the Court would
be surprised if it could.
respect
the
Midwest
Constitution
thinks
that
Certainly Defendants’ obligation to
predated
Midwest’s
obligation
also
Complaint;
obviated
the
but
need
why
for
discovery once a suit arose is an enigma.
Most broadly, Midwest Fence complains that though it filed
and
lost
its
wrongdoing.
awarded
suit,
But
absent
in
the
Midwest
our
losing
has
legal
not
been
system,
party’s
- 4 -
found
costs
showing
are
that
guilty
of
any
presumptively
costs
are
not
appropriate.
Beamon, 411 F.3d at 864.
There is no threshold
question of the losing party’s malfeasance.
Clearly, the Court
must reject all of Midwest’s generic objections to the taxation of
costs.
Yet
Midwest
also
levies
some
more
specific
arguments
against Defendants’ sought-after costs; these the Court considers
in turn.
A.
Tollway Defendants’ Bill of Costs
In total, the Tollway Defendants seek costs of $33,544.77.
The Court grants in part and denies in part their bill of costs.
1.
Court Reporting and Transcripts
The Tollway Defendants seek $15,065.85 in costs under this
category as follows:
Description
Copies of
Deposition
Transcripts
Original Deposition
Transcripts
Half-Day Court
Reporter Attendance
Fees
Full-Day Court
Reporter Attendance
Fees
Exhibits to
Transcripts
TOTAL
Pages
Cost
4,681 pages (at
$0.90/page)
$4,212.90
2,014 pages (at
$3.65/page)
7 separate
attendance fees not
to exceed $110/each
11 separate
attendance fees not
to exceed $220/each
2,172 pages (at
$0.50/each)
$7,351.10
$540.35
$1,850.35
$1,086.00
$15,040.70
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First,
the
Court
notes
that
the
Tollway
Defendants
incorrectly calculate this category’s total (based on the above
figures) as $15,065.85.
(See, Tollway Defs.’ Mem. in Supp. of
Revised Bill of Costs at 2-3, ECF No. 509.)
The Court corrects
that sum to $15,040.70 as reflected in the table above.
Copying
costs
are
“necessarily
obtained
§ 1920(4).
Here,
taxable
for
the
use
but
in
Tollway
must
the
be
reasonable
case.”
Defendants
See,
represent
28
U.S.C.
that
referred to and cited these transcripts in their briefs.
goes
beyond
the
requirement
that,
at
the
time
and
taken,
deposition appeared to be reasonably necessary to the case.
they
This
the
Soler
v. McHenry, 771 F.Supp. 252, 255 (N.D. Ill. 1991) (citing Illinois
v. Sangamo Constr. Co., 657 F.2d 855, 867 (7th Cir. 1981), aff’d
sub
nom.
Tollway
nature
Soler
v.
Waite,
989
have
also
Defendants
of
document
each
document
prepared,
copying cost.”
the
F.2d
251
(7th
appropriately
copied,
copying
the
cost
number
per
Cir.
1993).
“identif[ied]
of
page,
copies
and
of
the
The
the
each
total
Druckzentrum Harry Jung GmbH & Co. KG v. Motorola,
Inc., No. 09-CV-7231, 2013 WL 147014, at *7 (N.D. Ill. Jan. 11,
2013)
(citation
requested
and
transcript
internal
costs
quotation
per
page
marks
also
omitted).
conform,
as
The
Local
Rule 54.1(b) dictates they must, to the standards set forth by the
Judicial Conference of the United States.
- 6 -
Judicial Conference of
the United States, Federal Court Reporting Program, available at
http://www.uscourts.gov/services-forms/federal-court-reportingprogram.
Accordingly, these reporting and transcript costs shall
be taxed against the Plaintiff.
2.
The
Electronic Discovery to Plaintiff
Tollway
Defendants
seek
$17,110.79
electronic production of documents.
in
costs
for
Midwest objects, echoing the
Court’s earlier observation that OCR expenses — which account for
$3,251.10
of
this
category’s
total
—
are
“typically
not
recoverable as prevailing-party costs under 28 U.S.C. § 1920(4),
because they are incurred purely to make a document searchable (as
opposed to readable).”
(May 11, 2017 Order at 3, ECF No. 517
(citing Intercontinental Great Brands LLC v. Kellogg N. Am. Co.,
No. 13 C 321, 2016 WL 316865, at *6 (N.D. Ill. Jan. 26, 2016).)
This
$3,251.10
Court’s
will
not
earlier-stated
be
awarded.
objection
to
Midwest
also
Defendant’s
echoes
the
pursuit
of
$8,008.83 for “scanning – glass work/heavy litigation services.”
(See, Advanced Discovery Invoices at 3, Grp. Ex. 3 to Tollway
Defs.’ Bill of Costs, ECF No. 508-3.)
Despite the Court’s warning
that this “impregnable cost[] description, without more, furnishes
no basis for adjudicating reasonableness,” the Tollway Defendants
have provided no further elucidation of this term.
Order at 3.)
That $8,008.83 will not be awarded.
- 7 -
(May 11, 2017
The balance of the expenses in this category comprises Bates
labeling, imaging, CD/DVD creation, and courier service.
for Bates labeling have been found to be taxable.
Costs
DSM Desotech,
Inc. v. 3D Sys. Corp., No. 08 CV 1531, 2013 WL 3168730, at *2
(N.D.
Ill.
June
20,
2013)
(collecting
cases).
Expenses
for
imaging and the creation of electronic versions of documents are
taxable
when
the
parties
have
agreed
to
produce
documents
electronically, but Defendants have not produced evidence of any
such agreement here.
See, e.g., Specht v. Google Inc., No. 09 C
2572, 2011 WL 2565666, at *3 (N.D. Ill. June 27, 2011).
Courier
service costs are typically considered overhead and not allowable
as costs.
Chi. Bd. Options Exch., Inc. v. Int’l Sec. Exch., LLC,
No. 07 CV 623, 2014 WL 125937, at *3 (N.D. Ill. Jan. 14, 2014)
(collecting cases).
In sum, of the sought-after $17,110.79 in
electronic discovery costs, only the $1,320.16 for Bates labeling
will be awarded.
(See, Advanced Discovery Invoices (line items
describing “Bates matching” or alternatively “Endorsing” followed
by Bates numbers).)
3.
Third-Party Discovery
Finally, the Tollway Defendants seek to recover $1,390.28 in
costs of obtaining records from third-party contractors necessary
to conduct their depositions.
their
requests
to
those
Defendants explain they limited
contracts
- 8 -
for
which
Plaintiff
claimed
damages and that Defendants needed said records to defend against
Plaintiff’s
obtained
damages
for
use
claim.
in
the
These
case,”
28
copies
amounts charged are not reasonable.
U.S.C.
were
“necessarily
§ 1920(4),
but
the
First, three of the pertinent
invoices appear to charge for nothing at all.
(Records Imaging
Service Invoices at 6, 15-16, Grp. Ex. 4 to Tollway Defs.’ Bill of
Costs, ECF No. 508-4.)
There is no basis for the Court to judge
the reasonableness of the $75.50 total from these invoices, so
that sum
will
cumulative
not
$25.51
be
in
awarded.
“miscellaneous
the remaining invoices.
$39.05
for
explanation
for
as
to
will
of
such
why
an
the
is
notarization
award
reflected
the
in
Another invoice charged
affidavit.
costs
Court
disbursements”
(Id. at 4.)
notarization
reimbursement
Nor
(Id.
at
9.)
But
not
permitted
absent
an
was
reasonably
necessary.
Huerta v. Vill. of Carol Stream, No. 09 C 1492, 2013 WL 427140, at
*4 (N.D. Ill. Feb. 4, 2013) (collecting cases).
has been provided here; the $39.05 is denied.
No explanation
After making these
subtractions, we are left with a request of $1,250.22, apparently
for the copying of 1,082 pages.
Invoices, Grp. Ex. 4.)
courts
in
this
(See, Records Imaging Service
This amounts to about $1.16 per page, but
district
have
found
photocopying
costs
between
$0.10 and $0.20 to be reasonable.
Hakim v. Accenture U.S. Pension
Plan,
(N.D.
901
F.Supp.2d
1045,
1057
- 9 -
Ill.
2012)
(collecting
cases).
Tollway makes no effort to clarify why these pages were
so expensive.
The invoices include various sums for “scanning
records to internet,” but these line items go unexplained.
Tollway
Defendants
incurred
a
greater
cost
here
due
If the
to
some
reasonably necessary use it had of these documents in a format
other than mere paper copy, they have failed to articulate it.
The Court thus awards Defendants copying costs for these 1,082
pages at a $0.20/page rate, totaling $216.40.
B.
In
total,
IDOT Defendants’ Bill of Costs
the
IDOT
Defendants
seek
costs
of
$28,730.25.
Although these Defendants’ Motions could have benefitted from the
inclusion of case law authorities, many of the costs they seek are
nonetheless recoverable and reasonable.
The Court grants in part
and denies in part their bill of costs.
1.
Court Reporting and Transcripts
The IDOT Defendants seek $11,124.80 under this category of
costs.
IDOT calculated those costs based on the same prices per
page used above by the Tollway Defendants (to wit:
$0.90/page for
transcript copies; $3.65/page for original transcripts; $0.50/page
for exhibits).
(See, Costs Spreadsheet, Ex. A to IDOT Defs.’ Am.
Mot., ECF No. 507-1 (summarizing Magna Legal Services Invoices,
Grp. Ex. B to same, ECF No. 507-2).)
As stated above, these
figures
forth
accord
with
the
standards
- 10 -
set
by
the
Judicial
Conference of the United States.
Midwest Fence complains that
some of the deposition-related costs are duplicative, given that
IDOT deposed Everett Bell (one of the owners of Midwest) over nine
different
days.
Perhaps
Mr.
Bell
was
a
veritable
fount
of
knowledge and Defendants could not exhaust him; perhaps Mr. Bell
was
simply
obdurate.
Or,
as
Plaintiff
now
implies,
perhaps
Defendants took many days more with Mr. Bell than were required.
Had
Midwest
provided
some
selections
from
those
transcripts
showing as much, or at a minimum articulated any specific reason
for believing these depositions to be duplicative, the Court might
have ruled differently.
find
that
making
Midwest’s
an
mere
affirmative
appropriate.
conjecture
showing
shouldered
that
these
the
costs
burden
of
are
not
Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854,
864 (7th Cir. 2005).
constitute
As it stands, however, the Court will not
reasonable
The $11,124.80 sought by the IDOT Defendants
costs
and
will
be
taxed
against
the
Plaintiff.
2.
Subpoenas and Service of Process
The IDOT Defendants seek $11,054.75 for subpoenas and service
costs related to necessarily obtaining bid documents from prime
contractors.
The use of private process servers is an allowable
recovery
is
and
taxable
as
costs
under
28
U.S.C.
§ 1920(1).
Washington v. City of Springfield, No. 07-3075, 2011 WL 98941, at
- 11 -
*3 (C.D. Ill. Jan. 7, 2011) (citing Collins v. Gorman, 96 F.3d
1057, 1060 (7th Cir. 1996)).
In order to award costs for the
service of subpoenas, the Court need only determine whether the
subpoenas
were
reasonable
and
known at the time of service.
necessary
Id.
in
light
of
the
facts
To demonstrate that subpoenas
were unreasonable or unnecessary, a plaintiff must offer evidence
showing that a defendant unreasonably believed that the document
was necessary at the time it was sought.
at *2.
Huerta, 2013 WL 427140,
Here, Midwest does not specify for which subpoenas it
believes formal service was unnecessary, nor does it provide any
evidence to that effect.
Midwest thus fails to carry its burden
to demonstrate that the IDOT Defendants are not entitled to these
costs.
See, City of Springfield, 2011 WL 98941, at *3.
The
$11,054.75 sum shall be taxed against Midwest.
3.
Documents Copied for and Produced to Plaintiff
The IDOT Defendants seek $4,153.70 for copying 41,537 pages
at a rate of $0.10/page.
Photocopying charges for discovery are
recoverable and ten cents per page is a reasonable rate.
901 F.Supp.2d at 1057.
Hakim,
Midwest has not suggested any reason that
these copying costs are unreasonable, so they are allowed.
4.
Expert Fee
Finally, the IDOT Defendants seek the $2,397.00 they paid
Plaintiff’s expert, Johnathan Guryan, for his depositions.
- 12 -
The
Defendants paid Mr. Guryan $510/hour for 4.7 hours.
(See, Guryan
Invoice, Ex. E to IDOT Defs.’ Am. Mot., ECF No. 507-5.)
fees
are
recoverable
under
§ 1920(3),
allowable by 28 U.S.C. § 1821.”
but
only
to
“Witness
the
extent
Rogers v. Baxter Int’l Inc., No.
04 C 6476, 2011 WL 941188, at *4 (N.D. Ill. Mar. 16, 2011) (citing
Chi. Coll. of Osteopathic Med. v. George A. Fuller Co., 801 F.2d
908, 910 (7th Cir. 1986)) (citation omitted).
provided
by
the
IDOT
Defendants,
the
From the materials
Court
cannot
ascertain
whether any part of the requested $2,397.00 is compensable under
§ 1821,
which
permits
such
costs
as
travel
allowances.
See, Rogers, 2011 WL 941188, at *4.
Court
not
will
allow
these
costs
to
be
and
subsistence
Accordingly, the
taxed
against
the
Plaintiff.
IV.
CONCLUSION
In sum, the Court grants in part and denies in part both
bills of costs.
For the Tollway Defendants, the Court taxes against Midwest
$16,577.26 in costs, comprising:
$15,040.70 in court reporting
and transcript costs; $1,320.16 in electronic discovery costs; and
$216.40 in third-party discovery costs.
For
the
IDOT
Defendants,
the
Court
taxes
against
Midwest
$26,333.25 in costs, comprising: $11,124.80 in court reporting and
- 13 -
transcript costs; $11,054.75 in subpoena and service of process
costs; and $4,153.70 in document production costs.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:
3/29/2018
- 14 -
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