Mortera v. Target Corporation
Filing
53
MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 4/9/2019.Mailed notice.(jlj, )
Case: 1:17-cv-03485 Document #: 53 Filed: 04/09/19 Page 1 of 8 PageID #:472
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JACOB MORTERA,
Plaintiff,
vs.
TARGET CORPORATION,
Defendant.
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17 C 3485
Judge Gary Feinerman
MEMORANDUM OPINION AND ORDER
Jacob Mortera brought this negligence suit against Target Corporation in the Circuit
Court of Cook County, Illinois, alleging injuries from a slip and fall. Doc. 1-1. After Target
removed the suit under the diversity jurisdiction, Doc. 1, the court granted summary judgment
for Target, Docs. 34-35 (reported at 2018 WL 3753301 (N.D. Ill. Aug. 8, 2018)), and denied
reconsideration, Doc. 39. Target has filed a bill of costs seeking $8,969.21 under Civil
Rule 54(d)(1) and 28 U.S.C. § 1920. Doc. 40. Mortera opposes costs on the ground that he is
indigent; in the alternative, he objects to various entries in Target’s bill. Doc. 43. The court
awards Target $3,141.99 in costs.
A prevailing party “presumptively receives the costs of litigation and it is the losing
party’s burden to overcome this presumption.” Johnson v. Target Corp., 487 F. App’x 298, 301
(7th Cir. 2012). But “it is within the discretion of the district court to consider a plaintiff’s
indigenc[e] in denying costs under Rule 54(d).” Rivera v. City of Chicago, 469 F.3d 631, 634
(7th Cir. 2006) (internal quotation marks omitted). Rivera directs district courts to undertake a
two-step analysis when presented with a claim of indigence:
First, the district 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
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future. The burden is on the losing party to provide the district court with
sufficient documentation to support such a finding. This documentation
should include evidence in the form of an affidavit or other documentary
evidence of both income and assets, as well as a schedule of expenses.
Requiring a non-prevailing party to provide information about both
income/assets and expenses will ensure that district courts have clear proof of
the non-prevailing party’s dire financial circumstances. Moreover, it will
limit any incentive for litigants of modest means to portray themselves as
indigent.
Second, the district court should consider the amount of costs, the good faith
of the losing party, and the closeness and difficulty of the issues raised by a
case when using its discretion to deny costs. No one factor is determinative,
but the district court should provide an explanation for its decision to award or
deny costs.
Id. at 635-36 (citations and internal quotation marks omitted).
Mortera’s indigency claim fails at the first step, as he has not made the threshold showing
that he “is incapable of paying the court-imposed costs at this time or in the future.” The only
documentation Mortera provides is an affidavit addressing his inability to return to his job as a
bus driver and identifying his income, assets, and debts. Doc. 43 at 4. However, he does not
provide any information about his current expenses, and thus cannot establish that he is indigent.
See Rivera, 469 F.3d at 635 (holding that a losing party claiming indigence must “provide
information about both income/assets and expenses”). In any event, Mortera makes no argument
regarding the second step of the Rivera analysis—the amount of costs, his good faith, and the
closeness or difficulty of the issues—and thus forfeits his contention that he should be excused
from paying costs due to indigency. See G & S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534,
538 (7th Cir. 2012) (“We have repeatedly held that a party waives an argument by failing to
make it before the district court.”); Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011)
(“We apply [the forfeiture] rule where a party fails to develop arguments related to a discrete
issue … .”); Allen v. City of Chicago, 2013 WL 1966363, at *2 (N.D. Ill. May 10, 2013).
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The court turns next to Mortera’s objections to specific costs that Target seeks to recoup.
A court awarding costs must ask first “whether the cost imposed on the losing party is
recoverable” under 28 U.S.C. § 1920 and, “if so, whether the amount assessed for that item was
reasonable.” Majeske v. City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000). Recoverable costs
include (1) “[f]ees of the clerk and marshal”; (2) fees for “transcripts necessarily obtained for use
in the case”; (3) “[f]ees and disbursements for printing and witnesses”; (4) “[f]ees for
exemplification and the costs of making copies of any materials where the copies are necessarily
obtained for use in the case”; (5) “[d]ocket fees”; and (6) “[c]ompensation of court appointed
experts, compensation of interpreters, and salaries, fees, expenses, and costs of special
interpretation services.” 28 U.S.C. § 1920. “Although a district court has discretion when
awarding costs, the discretion is narrowly confined because of the strong presumption created by
Rule 54(d)(1) that the prevailing party will recover costs.” Contreras v. City of Chicago, 119
F.3d 1286, 1295 (7th Cir. 1997) (citation and internal quotation marks omitted).
Mortera objects to the $6,901.95 billed for subpoenaing and obtaining medical records
from nonparties, arguing that the invoices Target submitted to support those costs—from
vendors Record Copy Services and iCopy—are inadequate. Doc. 43 at 2-3.
The court agrees with Mortera that the Record Copy Services invoices are too vague to
support a cost award. Each invoice lists only the medical provider, the total amount charged, and
a “code,” which is a series of letters indicating the types of fees included in the total but not their
individual amounts. E.g., Doc. 40-1 at 11 (listing, as do most of the Record Copy Services
invoices, the code “SDCLZE,” which translates to “subpoena fee, subpoena services, copies,
location copying, disk copying, and expedited services”). The court cannot determine from those
barebones invoices whether the charged costs were reasonable and necessary. How many pages
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were copied? What was the vendor’s markup to the charges it paid to the various medical
providers? Why did Target pay for “expedited services” for nearly every subpoena, id. at 11-15,
25, 34, 38, 47-52, 54-56, 59-60, 64-65, 71-72, and how much did that cost? What are “special
services,” id. at 37?
Target’s answer is that it “produced the invoices that the vendor provided” and that “there
is insufficient evidence to say that the charges incurred were unreasonable.” Doc. 44 at 5. But
Target gets the burden backward, for as the party seeking costs, it—and not Mortera—“is
responsible for proving that the specific costs that it seeks to recover were reasonable and
necessary.” See United States ex rel. Marshall v. Woodward Governor Co., 2016 WL 2755324,
at *6 (N.D. Ill. May 12, 2016); see also Trading Techs. Int’l, Inc. v. eSpeed, Inc., 750 F. Supp. 2d
962, 969 (N.D. Ill. 2010) (“The prevailing party has the burden of demonstrating the amount of
its recoverable costs.”) (internal quotation marks omitted). Because the Record Copy Services
invoices are insufficient to meet that burden, Target has not adequately justified the Record Copy
Services costs. See Montanez v. Simon, 755 F.3d 547, 559 (7th Cir. 2014) (“[I]t was not the
judge’s responsibility to make up for the lawyers’ lack of documentation.”); Harper v. City of
Chi. Heights, 223 F.3d 593, 605 (7th Cir. 2000) (“[W]hen a fee petition is vague or inadequately
documented, a district court may … strike the problematic entries … .”); Rodriguez v. Ithal,
2003 WL 22284202, at *4 (N.D. Ill. Oct. 2, 2003) (“[T]he Record Copy Services invoices … are
too vague to support recovery. The invoices do not list the number of pages copied, nor do they
reflect the rate. The invoices do not break[ down] costs associated with service of each
subpoena. Without these figures, it is impossible to determine whether the costs [were
reasonable] … .”). The bill of costs is therefore reduced by $5,022.70, which is the amount
Target paid Record Copy Services.
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That leaves the iCopy invoices, which total $1,878.80. (Although Target claims
$6,901.95 in subpoena and records processing fees, Doc. 40 at 1, that figure includes an
unexplained $0.45, as the supporting invoices total only $6,901.50, Doc. 40-1 at 10-75.) Mortera
first objects that “many” of the iCopy invoices “do not have a per page copying charge listed.”
Doc. 43 at 2. But each invoice lists the number of pages and breaks down the fees. E.g.,
Doc. 40-1 at 44 (invoice listing a page count, subpoena fee, expedited procurement fee, records
processing fee, and a fee charged by the deponent). True, most of the invoices do not say how
much iCopy billed per page, but that is because it only twice charged by the page. Compare
ibid. (typical invoice listing only flat fees), with id. at 31 (invoice indicating that iCopy charged
$0.05 per page for optical character recognition (“OCR”) and a $0.38 per page records
processing fee, in addition to the deponent’s $22 fee, a $46 subpoena fee, and a $30 fee for
expedited service), and id. at 40 (similar).
Mortera next objects that where iCopy’s charge per page can be calculated, it is
“outrageous,” citing three examples: $104.98 for eight pages from one medical provider, id. at
21; $109.43 for six pages from another provider, id. at 23; and $96.00 for four pages from a third
provider, id. at 42. Mortera characterizes those invoices as charging $13.12 per page, $18.24 per
page, and $24.00 per page, respectively. Doc. 43 at 2-3. Dividing the total cost by the number
of pages produces those figures, but those figures do not fairly summarize the invoices. The
$104.98 invoice breaks down the charges into three categories: a $48 fee for serving the
subpoena, a $22 records processing fee, and a $34.98 fee charged by the deponent (which
includes iCopy’s 12% administrative fee). Doc. 40-1 at 21. The other two challenged invoices
are similar. Id. at 23 (listing subpoena, deponent, and expedited service fees); id. at 42 (listing
subpoena, records processing, and expedited service fees).
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Two of those three categories of fees are reasonable. First, the subpoena fees of $46 or
$48 are less than the U.S. Marshal’s fee, which is $65 minimum per person served. See 28
C.F.R. § 0.114(a)(3); Allen, 2013 WL 1966363, at *3 (holding that a $45 “process server fee”
was reasonable because it was less than the U.S. Marshal’s minimum fee). Second, the fees
charged by the deponents, while quite high, were likely unavoidable. Given that Mortera’s
medical records “were exclusively in the possession of specific medical providers, it is likely that
[Target] had little choice but to pay the various’ doctors going rates for record retrieval and
delivery.” Arce v. Chi. Transit Auth., 2017 WL 714107, at *6 (N.D. Ill. Feb. 23, 2017), aff’d,
738 F. App’x 355 (7th Cir. 2018).
Target fails, however, to establish that the records processing fees—which were per-page
charges of $0.35 or $0.38 (plus $0.05 per page for OCR) or flat fees of $20 or $22—are
reasonable, particularly given that iCopy already charged fees for serving subpoenas and
administrative fees for passing on the deponents’ fees. Target asserts in its brief that those fees
cover “following up to obtain the records, processing the records once received and producing
them to [Target].” Doc. 44 at 6. But an assertion in a brief is not evidence. See Mitze v. Colvin,
782 F.3d 879, 882 (7th Cir. 2015) (“[A]ssertions in briefs are not evidence … .”); In re Morris
Paint & Varnish Co., 773 F.2d 130, 134 (7th Cir. 1985) (“Arguments and factual assertions
made by counsel in a brief, unsupported by affidavits, cannot be given any weight.”). And
without knowing what “processing” iCopy did, it is impossible to determine whether it was a
type of processing for which costs are recoverable and, if so, whether the amounts charged were
reasonable. See Allen, 2013 WL 1966363, at *5 (“Costs may be awarded under § 1920(4) for
electronically scanning and processing documents, as the electronic scanning of documents is the
modern-day equivalent of exemplification and copies of paper. Such costs are limited, however,
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to processing that is the equivalent of ‘exemplification or making copies,’ and do not encompass
work that goes beyond merely converting a paper version into an electronic document.”)
(citations and some internal quotation marks omitted) (collecting cases). Indeed, the only
specifically identified type of processing, OCR, is not recoverable. See id. at *5-6 (holding that
costs incurred for OCR are not recoverable because OCR goes beyond “merely converting a
paper version into an electronic document” and substitutes for work attorneys or support staff
would otherwise have to perform) (internal quotation marks omitted). Target thus has not met its
burden of establishing that iCopy’s processing fees were reasonable. See Montanez, 755 F.3d at
559; Harper, 223 F.3d at 605; Marshall, 2016 WL 2755324, at *6. The bill of costs is therefore
reduced by $412.07, which reflects iCopy’s flat processing fees ($184) and the per-page OCR
and processing fees of $0.40 and $0.43 it charged in two instances ($228.07).
As to the $330.00 Target paid iCopy for expedited services, Target does not respond to
Mortera’s objection, thus forfeiting the point. See Nichols v. Mich. City Plant Planning Dep’t,
755 F.3d 594, 600 (7th Cir. 2014) (“The non-moving party waives any arguments that were not
raised in [a] response … .”); G & S Holdings, 697 F.3d at 538. In any event, Target does not
offer any evidence establishing that it was reasonably necessary to expedite nearly every
subpoena, and thus cannot meet its burden as to those costs. See Montanez, 755 F.3d at 559;
Harper, 223 F.3d at 605; Marshall, 2016 WL 2755324, at *6. The bill of costs is therefore
reduced by $330.00.
Finally, Mortera objects, Doc. 43 at 3, to the $62.00 Target paid iCopy for three “no
records affidavit[s].” Doc. 40-1 at 31, 32, 74 (capitalization altered). Target asserts in its brief
that those charges are for “follow[ing] up with the medical provider, process[ing] [the
provider’s] response and provid[ing] [Target] with documentation reflecting the lack of records.”
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Doc. 44 at 7. As noted, “assertions in briefs are not evidence.” Mitze, 782 F.3d at 882. Target
accordingly has not met its burden to show that the no-records costs are recoverable. See
Montanez, 755 F.3d at 559; Harper, 223 F.3d at 605; Marshall, 2016 WL 2755324, at *6. The
bill of costs is therefore reduced by $62.00.
In sum, the court reduces the iCopy costs of $1,878.80 by $804.07 ($412.07 + $330.00 +
$62.00), leaving $1,074.73. Mortera does not challenge Target’s claimed $867.00 in “[f]ees of
the Clerk” and $1,200.26 in fees for “transcripts necessarily obtained for use in the case.”
Doc. 40 at 1. He thus forfeits any objection to those costs. See G & S Holdings, 697 F.3d at
538; Alioto, 651 F.3d at 721. That makes the total cost award $3,141.99 ($1,074.73 + $867.00 +
$1,200.26).
Conclusion
Mortera’s objections to Target’s bill of costs are sustained in part and overruled in part.
Target’s bill of costs of $8,969.21 is reduced by $5,827.22 ($5,022.70 for the Record Copy
Services costs, $804.07 for the iCopy costs, and the $0.45 discrepancy between the claimed
amount and the invoices noted above), resulting in a cost award of $3,141.99.
April 9, 2019
United States District Judge
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