Wilson v. Career Education Corporation

Filing 117

MEMORANDUM Opinion and Order. Signed by the Honorable Geraldine Soat Brown on 4/29/2016. (et, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RILEY J. WILSON,
Plaintiff,
v.
CAREER EDUCATION
CORPORATION,
Defendant.

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Case No. 11 C 5453
Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER
Before the court are plaintiff’s objections [dkt 112] to defendant’s bill of costs [dkt 107],
which seeks a total of $13,107.09, consisting of various fees for printed or electronically recorded
transcripts, disbursements for printing, and costs for copies. For the following reasons, plaintiff’s
objections are sustained in part and overruled in part. Defendant may recover $7,219.40.

Background
Plaintiff Riley J. Wilson (“Wilson”) filed this case as a class action against his former
employer, Career Education Corporation (“CEC”), alleging that CEC breached the employment
contract of admissions representatives by depriving them of bonuses they should have received.
(Compl. ¶ 1.) [Dkt 1.] Wilson also alleged claims under implied contract and unjust enrichment
theories of liability. (Compl. ¶¶ 39-45.) Wilson’s complaint was dismissed for failure to state a
claim. [Dkt 41]; Wilson v. Career Educ. Corp., No. 11 C 5453, 2012 WL 1246328, at *7-8 (N.D.
Ill. Apr. 13, 2012). Wilson appealed, and the majority of the Seventh Circuit panel concluded in a

1

per curiam decision that there was an enforceable contract, that CEC had the unambiguous right to
terminate the plan and refuse to pay bonuses, and that an enforceable contract precluded recovery
on an unjust enrichment theory. Wilson v. Career Educ. Corp., 729 F.3d 665, 671 (7th Cir. 2013).
However, a majority also concluded that Wilson successfully pleaded a claim for violation of the
implied covenant of good faith and fair dealing, and remanded the case for further proceedings on
that theory. Id.
On remand, the court ultimately granted summary judgment in favor of CEC on Dec. 18,
2015. [Dkt 100.] The court determined that no reasonable jury could return a verdict in Wilson’s
favor on his claim that, in deciding to limit bonus payments to those earned as of February 28, 2011,
CEC exercised its discretion to terminate the bonus incentive plan for admissions representatives in
violation of its obligation of good faith and fair dealing. (Memorandum Opinion and Order, Dec.
18, 2015, at 15.) [Dkt 99.] Wilson filed a Notice of Appeal on January 11, 2016. [Dkt 102.]
As the prevailing party, CEC filed its bill of costs and supporting memorandum [dkt 108]
pursuant to 28 U.S.C. § 1920 and Fed. R. Civ. P. 54(d)(1). The bill of costs is broken down into two
major sections, requesting $9,150.95 for deposition-related expenses (Def.’s Bill of Costs at 1; Def.’s
Mem. at 3), $3,906.14 for printing and copying costs for deposition preparation (Def.’s Bill of Costs
at 1; Def.’s Mem. at 5). CEC also requests $50 for producing documents in the requested format
(Def.’s Bill of Costs at 1; Def’s Mem. At 6), and Wilson takes no issue with that (Pl.’s Mem. at 9).
CEC provided a list of itemized charges with its bill of costs, including invoices. (Def.’s Bill of
Costs, Exs. A - A-14.) Wilson filed objections, as well as two declarations from court-reporting
companies, Erin Sloan of Exhibit 5 LLC (Sloan Decl.) [dkt 113] and Margaret Exler of Exler
Reporting (Exler Decl.) [dkt 114].
2

Legal Standard
Rule 54(d)(1) of the Federal Rules of Civil Procedure provides that “[u]nless a federal statute,
these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be
allowed to the prevailing party.” 28 U.S.C. § 1920 enumerates the costs that a judge may tax:
(1) fees of the clerk and marshal; (2) fees for transcripts necessarily obtained for use in the case; (3)
fees for printing and witnesses; (4) fees for exemplification and the costs of making copies of any
materials where the copies were necessarily obtained for use in the case; (5) docket fees under 28
U.S.C. § 1923; and (6) compensation of court appointed experts and interpreters. The Supreme
Court interpreted section 1920 to define “the term ‘costs’ as used in Rule 54(d).” Crawford Fitting
Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 441 (1987). The Court subsequently re-emphasized the
“narrow scope of taxable costs.” Taniguchi v. Kan Pacific Saipan, Ltd., ___ U.S. ___, 132 S. Ct.
1997, 2006 (2012). “Taxable costs are limited to relatively minor, incidental expenses . . . . Taxable
costs are a fraction of the nontaxable expenses borne by litigants for attorneys, experts, consultants
and investigators.” Id. Whether a particular cost is within the scope of § 1920 is an issue of
statutory construction and thus a question of law. In re Ricoh Co. Patent Litig., 661 F.3d 1361, 1364
(Fed. Cir. 2011).
“There is 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 Co., 411 F.3d 854, 864 (7th Cir. 2005). “Taxing costs against a losing party requires two
inquiries: (1) whether the cost imposed on the losing party is recoverable and (2) if so, whether the
amount assessed for that item was reasonable.” Majeske v. City of Chicago, 218 F.3d 816, 824 (7th
Cir. 2000). Although there is a strong presumption that the prevailing party will recover costs, the
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party seeking an award of costs carries the burden of showing that the requested costs were
necessarily incurred and reasonable. Trs. of the Chi. Plaster Inst. Pension Trust, et al., v. Cork
Plaster Co., 570 F.3d 890, 906 (7th Cir. 2009); Park v. City of Chi., 297 F.3d 606, 617 (7th Cir.
2002).

Discussion
Deposition-Related Expenses
CEC claims it is entitled to $9,150.95 in court reporter fees and transcript costs. (Def.’s
Mem. at 3-5.) Wilson takes issue with these fees and costs because court reporter attendance fees
were included, several transcripts were ordered on an expedited basis, two depositions included both
videotape and transcript charges, deposition exhibit copy costs were included, and several other nontaxable charges were included. (Pl.’s Mem. at 3-8.)

Court Reporter Attendance Fees
A prevailing party can recover costs for deposition transcripts because “[f]ees for printed or
electronically recorded transcripts” are recoverable, so long as they are “necessarily obtained for use
in the case.” 28 U.S.C. § 1920(2). Separate court reporter attendance fees are “properly regarded
as a component of the fee for the transcript.” Extra Equipamentos E Exportacao Ltda. v. Case
Corp., 541 F.3d 719, 727 (7th Cir. 2008). As late as 2012, however, that there was a lingering issue
of whether the local rule’s limit on per-page reimbursement included appearance fees. Harney v.
City of Chicago, 702 F.3d 916, 927-28 (7th Cir. 2012). The Northern District followed the Seventh
Circuit’s suggestion in Harney and updated Local Rule 54.1(b):
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(b) Transcript Costs. Subject to the provisions of Fed.R.Civ.P. 54(d), the expense of
any prevailing party in necessarily obtaining all or any part of a transcript for use in
a case, for purposes of a new trial, or amended findings, or for appeal shall be taxable
as costs against the adverse party. If in taxing costs the clerk finds that a transcript
or deposition was necessarily obtained, the costs of the transcript or deposition shall
not exceed the regular copy rate as established by the Judicial Conference of the
United States and in effect at the time the transcript or deposition was filed unless
some other rate was previously provided for by order of court. Court reporter
appearance fees may be awarded in addition to the per page limit, but the fees shall
not exceed the published rates on the Court website unless another rate was
previously provided by order of court. Except as otherwise ordered by the court, only
the cost of the original of such transcript or deposition together with the cost of one
copy each where needed by counsel and, for depositions, the copy provided to the
court shall be allowed.
(Emphasis added.)
That amendment disposes of Wilson’s objection (see Pl.’s Mem. at 8), but the rates on the
court website serve as a ceiling for appearance fees: “Unless another rate was previously provided
by order of the Court, the court reporter attendance fee shall not exceed $110 for one half day (4
hours or less), and $220 for a full day attendance fee.” United States District Court for the Northern
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http://www.ilnd.uscourts.gov/Pages.aspx?rsp2kxYIAI6Z3skP0PESA+q3bXKkfRyo (last visited
April 28, 2016). Those rates apply here because no alternate rate was provided by the court and will
serve to limit the appearance fee charged for Wilson’s deposition to $220. The court reporter
charged CEC $280 for appearing at Wilson’s deposition. (Def.’s Bill of Costs, Exs. A, A-1 at 2.)
Wilson’s objection is overruled, and CEC is awarded $220 for court reporter appearance fees at
Wilson’s deposition.

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Expedited Deposition Transcripts
Wilson argues that CEC inappropriately submitted costs for depositions at the “Daily
Transcript” rate of $6.05 per page, rather than the “Ordinary Transcript” rate of $3.65 per page.
(Pl.’s Mem. at 3.) “Costs for expedited transcripts are recoverable when, as with regular transcripts,
the prevailing party demonstrates expedited transcripts were reasonably necessary.

‘[T]he

determination of necessity [with respect to § 1920(2)] must be made in light of the facts known at
the time of the deposition . . . .’” Roney v. Illinois Dept. of Transp., No. 99 C 4941, 2007 WL
1100751, at *4 (N.D. Ill. April 12, 2007) (internal citations omitted).
CEC does not explain why expedited transcripts were needed. Fact discovery in this case
closed on January 30, 2015 [dkt 75], with CEC’s motion for summary judgment due on March 24,
2015 [dkt 77]. Many of the depositions, including Wilson’s, were completed by the fall of 2014, and
although six depositions were taken in January 2015, there were almost two months between the last
deposition and the due date for the summary judgment motion. (See Def.’s Bill of Costs, Exs. A-1 A-12.) In the absence of any explanation from CEC why expedited transcripts were required, CEC
is not entitled to expedited rates, and the rate will be capped at the published rates on the court’s
website, $3.65 per page. United States District Court for the Northern District of Illinois,
http://www.ilnd.uscourts.gov/Pages.aspx?rsp2kxYIAI6Z3skP0PESA+q3bXKkfRyo (last visited
April 28, 2016). 1

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CEC states that it reduced its claims to reflect the current per page judicial rate for
deposition transcripts, calculating the rate at $6.05 per page rather than $3.65 for several depositions
even though the billed rate was higher. (See Def.’s Mem., Ex. A at 2.) CEC likely used $6.05
because it was claiming an expedited transcript rate. Because the request for expedited transcript
rates is denied, each submission in the bill of costs will be adjusted to no more than $3.65 per page.
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One exception is Maureen Cahill’s deposition. The cost of the expedited transcript as billed
by the reporting company was $488.40. (Def.’s Mem., Ex. A-4.) Plaintiff submitted a declaration
from the reporting company stating that the standard rate would have been $330. (Exler Decl.) [Dkt
114.] The deposition was 132 pages long (CEC’s 56.1 Stmt., Ex. 9 [dkt 81]), which under the
maximum rate per page ($3.65) would total $481.80. The standard rate from the company was
actually lower, and that rate ($330) will be used.

Videotaped Depositions
Two videorecorded depositions were taken: Wilson’s and that of Maureen Cahill, a
deposition noticed by Wilson. Wilson objects to CEC’s claim for the cost of the videorecorded and
written transcripts of those two depositions, (Pl.’s Mem. at 4,), but it does not appear that CEC is
asking for the cost of a videorecorded transcript for Cahill’s deposition. (See Def.’s Mem., Ex.A at
2.) CEC is requesting the cost of both the videorecorded and written transcript of Wilson’s
deposition. (Id. at 1.)
28 U.S.C. § 1920(2) allows an award for the cost of printed or electronically recorded
transcripts, and the statute has consistently been applied to tax costs for videotaped depositions that
are reasonably necessary. See Stollings v. Ryobi Technologies, Inc., No 08 C 4006, 2015 WL
4100479, at *5 (N.D. Ill. July 6, 2015); Life Plans, Inc. v. Security Life of Denver Ins. Co., 52 F.
Supp. 3d 893, 897 (N.D. Ill. June 25, 2014). Wilson contends that CEC should be awarded only the
written transcript costs. (Pl.’s Mem. at 8.)
The court may award both the cost of videorecording a deposition and the cost of a transcript
of the deposition, so long as the transcript was necessarily obtained for use in the case. Little v.
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Mitsubishi Motors North America, Inc., 514 F.3d 699, 701-02 (7th Cir. 2008). It is not surprising
that CEC would want a videorecording of Wilson’s deposition because he was the named plaintiff
in a putative class action. “Playing a video deposition is superior to reading a deposition because
the jury gets to see and hear the witness testify, which both enhances the jury’s attention and permits
it to make credibility determinations.” Stollings, 2015 WL 4100479, at *5. As the Seventh Circuit
noted in Little, in most cases a written transcript will also be necessary. 514 F.3d at 702. Here,
portions of the written transcript of Wilson’s deposition were submitted by both sides on the
summary judgment motion. [Dkt 81, 90.] CEC is awarded the costs of both the videorecording and
the written transcript of Wilson’s deposition.

Deposition Exhibit Copies and other related charges
It appears that CEC is including in its deposition costs charges for “on line exhibits” and
“Adobe exhibit number bookmarks.” (See, e.g., Def.’s Exs. A, A-2, A-3.) Wilson objects to these
charges and states that the exhibits used in the deposition were documents CEC produced in
discovery. (Pl.’s Mem. at 7.) “Charges for exhibit copies are not taxed as costs absent an
explanation of why copies were necessary.” Plyler v. Whirlpool Corp., No. 08 C 6637, 2012 WL
5845428, at *2 (N.D. Ill. Nov. 19, 2012) (citing U.S. Fidelity & Guar. Co. v. Shorenstein Realty
Servs., L.P., 803 F. Supp. 2d 920, 923 (N.D. Ill. 2011)). CEC does not explain these charges or why
they were necessary. No costs for exhibit copies will be awarded.
Wilson also objects to several other charges, such as transcript delivery and electronic copies
of deposition transcripts, as not taxable. “Additional items such as disks, word indexes, extra copies,
or delivery charges are regarded either as convenience or an ordinary business expense for the lawyer
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and are not generally compensable” unless reasonably necessary and not merely for convenience.
See Plyler, 2012 WL 5845428, at *2-4 (ultimately denying other costs as well under the same
principle, including exhibits, condensed exhibits, litigation support disk, summary, read and sign
correspondence, MINI, ASCII, certification fee-copy, condensed transcript, and others); see also
Goldberg v. 401 North Wabash Venture LLC, No. 09 C 6455, 2013 WL 4506071, at * 3 (N.D. Ill.
Aug. 23, 2013). CEC has not provided an explanation why any of these costs are necessary and not
merely for the convenience of the attorneys. Those costs are, therefore, denied.

Copying-Related Expenses
CEC argues it is entitled to $3,906.14 in copying costs to prepare for depositions and for
witness interviews. (Def.’s Mem. at 5-6.) Wilson does not object to the $46.70 expended for
potential deposition exhibits when CEC took Wilson’s deposition, but objects to the remaining
copying charges and additional product and service charges. (Pl.’s Mem. at 8-12.)
28 U.S.C. § 1920(4) expressly authorizes fees for copying any materials when they are
necessarily obtained for use in the case. The prevailing party is “not required to submit a bill of costs
containing a description so detailed as to make it impossible economically to recover photocopying
costs.” However, it must “provide the best breakdown obtainable from retained records.”
Northbrook Excess and Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 643 (7th Cir.
1991). In Roney, photocopying costs were allowed because the party seeking costs provided the
court a chart listing the particular documents copied, the total number of pages, the amount charged
per page, the number of copies made, and the recipients of those copies, from which the court could
evaluate the reasonableness of the costs. Roney, 2007 WL 1100751, at *2. Here, CEC states only:
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These costs are reasonable given the number of depositions and the volume of
discovery that Plaintiff sought in this case. The parties took eleven depositions,
including two corporate representative depositions pursuant to Federal Rule of Civil
Procedure 30(b)(6), all but one of which were noticed by Plaintiff. Plaintiff’s
allegations arose out of a complex compensation and financial process involving
several CEC executive and upper-management personnel. Preparing for so many
depositions on a wide range of issues involving a complex process required
significant copying of relevant documents produced during discovery.
(Def.’s Mem. at 5-6 (emphasis in original).)
While this was certainly a case of some complexity, that is not the standard for awarding
copying costs. “Courts interpret Section 1920(4) to mean that photocopying charges for discovery
and court copies are recoverable, but charges for copies made for attorney convenience are not.”
Goldberg, 2013 WL 4506071 at * 6 (citing Kulumani v. Blue Cross Blue Shield Ass’n, 224 F.3d 681,
685 (7th Cir. 2000)). The printing costs CEC claims appear to have been incurred exclusively for
attorney convenience rather than for the court or production to opposing counsel. (See Def.’s Mem.,
Ex. A at 7: “documents for interviewing witnesses,” “general documents for use in prepping
witnesses,” “interview materials.”) Those costs must be denied. Similarly, the “technical time”
incurred by the copying company is also denied. (See, e.g., Def.’s Mem., Ex. A-13.)
Additionally, there were significant expenses for tabs and binders. Binder costs ranged from
$5 to $35 per binder, and tab costs ranged from $.25 - $.50 per tab, for total tab costs of up to
$398.50. (Def.’s Mem., Ex. A-13.) Costs for tabs and binders often are not recoverable. See U.S.
Fidelity & Guar. Co., 803 F. Supp. 2d at 925. There has been no showing these items were
necessary for more than attorneys’ convenience in this case; they are therefore denied.

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Conclusion
For the reasons stated, Wilson’s objections are granted in part and denied in part. CEC is
entitled to costs in the amount of $7,219.40, as fully described in the attached Table A.
IT IS SO ORDERED.

______________________________________
Geraldine Soat Brown
United States Magistrate Judge
April 29, 2016

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TABLE A
CATEGORY

AMOUNT
REQUESTED

EXHIBIT
[Dkt 107-1]

Court Reporter
& Deposition
Transcript Fees

$1,290.00

A-1

Video Dep. –
Wilson

$1,290

Court Reporter
& Deposition
Transcript Fees

$1,026.50

A-1

Dep. Transcript –
Wilson:
$3.65/page X 216
pages; $220
appearance fee;
no electronic
transcript files, no
delivery

$1,008.40

Court Reporter
& Deposition
Transcript Fees

$1,625.00

A-2

Dep. Transcript –
Campe:
$3.65/page X 250
pages; no PDF
exhibit
bookmarks; no
online exhibits

$912.50

Court Reporter
& Deposition
Transcript Fees

$950.25

A-3

Dep. Transcript –
McCullough:
$3.65/page X 150
pages; no PDF
exhibit
bookmarks; no
online exhibits

$547.50

Court Reporter
& Deposition
Transcript Fees

$670.65

A-4

Dep. Transcript –
Cahill: $330
Standard Rate
from Company;
no PDF rough
draft; no exhibits;
no delivery

$330

12

DESCRIPTION

AMOUNT
GRANTED

Court Reporter
& Deposition
Transcript Fees

$595.10

A-5

Dep. Transcript –
Williams:
$3.65/page X 162
pages; no PDF
exhibit
bookmarks; no
online exhibits

$591.30

Court Reporter
& Deposition
Transcript Fees

$629.20

A-6

Dep. Transcript –
McLean:
$3.65/page X 104
pages

$379.60

Court Reporter
& Deposition
Transcript Fees

$313.90

A-7

Dep. Transcript –
Graham:
$3.65/page X 86
pages. No
objection.

$313.90

Court Reporter
& Deposition
Transcript Fees

$494.05

A-8

Dep. Transcript –
Sherwood:
$3.65/page X 133
pages; no PDF
exhibit
bookmarks; no
online exhibits

$485.45

Court Reporter
& Deposition
Transcript Fees

$559.25

A-9

Dep. Transcript –
Budlong:
$3.65/page X 137
pages; no PDF
exhibit
bookmarks; no
online exhibits

$500.05

Court Reporter
& Deposition
Transcript Fees

$234.75

A-10

Dep. Transcript –
Grayeb: No
Objection. At 91
pages [dkt 81-16],
less than
$3.65/page

$234.75

13

Court Reporter
& Deposition
Transcript Fees

$353.25

A-11

Dep. Transcript –
Campe:
$3.65/page X 65
pages; no PDF
exhibit
bookmarks; no
online exhibits

$237.25

Court Reporter
& Deposition
Transcript Fees

$409.05

A-12

Dep. Transcript –
Barry: $3.65/page
X 80 pages; no
PDF exhibit
bookmarks; no
online exhibits

$292.00

Copying Fees

$53.22

A-13

Copies of
documents for
interviewing
witnesses January
2014

$0

Copying Fees

$476.28

A-13

Copies of general
documents for use
in prepping
30(b)(6)
witnesses

$0

Copying Fees

$879.58

A-13

Copies of general
documents for use
in prepping
30(b)(6)
witnesses

$0

Copying Fees

$88.62

A-13

Copies of
deposition
preparation
materials for the
November 12,
2014 deposition
of Gary
McCullough

$0

14

Copying Fees

$98.06

A-13

Copies of
deposition
exhibits marked
to date for use in
future depositions

$0

Copying Fees

$190.49

A-13

Copies of
deposition
preparation
materials for the
November 12,
2014 deposition
of Gary
McCullough

$0

Copying Fees

$97.32

A-13

Copies of
deposition
preparation
materials for the
January 26, 2015
deposition of
Jackie Barry

$0

Copying Fees

$142.80

A-13

Copies of
deposition
preparation
materials for the
November 17,
2014 deposition
of Maureen Cahill

$0

Copying Fees

$144.60

A-13

Copies of
deposition
preparation
materials for the
November 17,
2014 deposition
of Brian Williams

$0

15

Copying Fees

$402.66

A-13

Copies of
deposition
preparation
materials for the
January 23, 2015
deposition of
Thomas Budlong

$0

Copying Fees

$278.95

A-13

Copies of
deposition
preparation
materials for the
January 26, 2015
deposition of
Jennifer Campe

$0

Copying Fees

$512.20

A-13

Copies of
deposition
preparation
materials for the
January 26, 2015
deposition of
Jackie Barry

$0

Copying Fees

$264.96

A-13

Copies of
deposition
preparation
materials for the
January 26, 2015
deposition of
Jennifer Campe

$0

Copying Fees

$95.20

A-13

Copies of
deposition
preparation
materials for the
January 26, 2015
deposition of
Jennifer Campe

$0

Copying Fees

$38.10

A-14

Copies of J. Barry
interview
materials: 381
pages

$0

16

Copying Fees

$44.70

A-14

Wilson Potential
Dep. Exhibits. No
Objection.

$44.70

Copying Fees

$2.00

A-14

Copies of Wilson
Potential Dep.
Exhibits. No
Objection.

$2.00

Copying Fees

$26.40

A-14

Copies of B.
Williams
interview
materials: 264
pages

$0

Copying Fees

$24.00

A-14

Copies of M.
Cahill deposition
materials: 240
pages

$0

Copying Fees

$15.10

A-14

Copies of M.
Cahill deposition
materials: 151
pages

$0

Copying Fees

$18.40

A-14

Copies of B.
Williams
deposition
materials: 151
pages

$0

Copying Fees

$11.50

A-14

Copies of B.
Williams
deposition
materials: 115
pages

$0

Copying Fees

$.40

A-14

Copies of general
deposition
exhibits:
4 pages

$0

Copying Fees

$.60

A-14

Copies of J.
Campe deposition
documents: 6
pages

$0

17

Other Costs

$15.00

A-14

Duplication of
Production
CD/DVD. No
Objection.

$15.00

Other Costs

$20.00

A-14

Duplication of
Production
CD/DVD. No
Objection.

$20.00

Other Costs

$15.00

A-14

Duplication of
Production
CD/DVD. No
Objection.

$15.00

TOTAL:

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$7,219.40