Bryant et al v. USA et al

Filing 121

ORDER granting in part and denying in part 112 MOTION for Bill of Costs filed by Patoya Bryant, Sean Cobbs. The Court AWARDS plaintiffs costs in the amount of $12,957.75. Signed by Chief Judge David R. Herndon on 1/29/14. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CSC, a minor, by his parents and
next friends, PATOYA BRYANT and
SEAN COBBS, and PATOYA BRYANT,
and SEAN COBBS, individually,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

No. 10-0910-DRH
MEMORANDUM and ORDER

HERNDON, Chief Judge:
Pending before the Court is plaintiffs’ Bill of Costs (Doc. 112).

Specifically,

plaintiff asks for $13,561.10 in costs which include: (1) $550.00 for fees of the
Clerk; (2) $12,136.10 for fees for printed or electronically recorded transcripts
necessarily obtained for use in the case; and (3) $875.00 for witnesses. Defendant
objects to only the $640 mileage fee charge for the witnesses, Atkinson, Hunsaker,
Burns and Roach (Doc. 118).
Rule 54(d)(1) provides that Acosts other than attorneys' fees shall be allowed
as of course to the prevailing party unless the court otherwise directs ...@ Cefalu v.
Vill. of Elk Grove, 211 F.3d 416, 427 (7th Cir. 2000). There is a presumption in
favor of the award of costs, and in order to overcome that presumption, Athe losing
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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) (citing M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1409 (7th Cir.
1991)). Thus, Rule 54(d)(1) establishes Aa presumption that the losing party will
pay costs but grants the court discretion to direct otherwise.@ Rivera v. City of
Chicago, 469 F.3d 631, 634 (7th Cir. 2006). The Seventh Circuit recognizes Aonly
two situations in which the denial of costs might be warranted: the first involves
misconduct of the party seeking costs, and the second involves a pragmatic
exercise of discretion to deny or reduce a costs order if the losing party is indigent.@
Mother & Father v. Cassidy, 338 F.3d 704, 708 (7th Cir. 2003); see also, Riveria.
469 F.3d at 634.
Although the prevailing party is, thus, presumptively entitled to costs, not all
of the costs of litigation are recoverable. A[A] district court may not tax costs under
Rule 54(d) unless a federal statute authorizes an award of those costs.@

Republic

Tobacco Co. v. N. Atl. Trading Co., 481 F.3d 442, 447 (7th Cir. 2007). The list of
recoverable costs pursuant to 28 U.S.C. ' 1920 includes: (1) fees of the clerk and
marshal, (2) fees for transcripts, (3) witness and printing fees and expenses, (4)
fees for copies or papers necessarily obtained for use in the case, (5) docket fees,
and (6) compensation for court-appointed experts and interpreters. 28 U.S.C. '
1920. Taxing costs against the non-prevailing party requires two inquiries: (1)
whether the cost is recoverable, and (2) whether the amount assessed is
reasonable.

See Majeske v. City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000).
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Further, 28 U.S.C. ' 1924 requires that the party filing the bill of costs verify the
claimed items by attaching an affidavit attesting Athat such item is correct and has
been necessarily incurred in the case and that the services for which fees have been
charged were actually and necessarily performed.@

Plaintiffs did so in this case.

As to the costs that defendants do not object to the Court has reviewed those
costs and finds them to be reasonable.

Thus, the Court AWARDS plaintiffs

$550.00 for fees of the Clerk and $12,136.10 for fees printed or electronically
recorded transcripts.
Lastly, plaintiffs seek $875.00 in costs associated with witnesses fees
pursuant to 28 U.S.C. 1920(3) and 28 U.S.C. ' 1821. Specifically, plaintiffs ask for
$200.00 for each of the following witnesses: Johna Atkinson, Sadie Hunsaker,
Megan Burns and Nicole Roach.

Plaintiffs seek $40.00 for attendance and

$160.00 mileage for their travel to the depositions. Plaintiffs also ask for $75.00
for Cirilo Sotelo-Avila, MD.

Defendants argue that plaintiffs cannot recover the

$160.00 for each witnesses’ mileage fee under 28 U.S.C. § 1821(b).

The Court

agrees with defendants.
With the exception of court-appointed expert witnesses, witness fees are
limited to $40.00 per day of attendance at trial or deposition as well as expenses
incurred for travel and subsistence. 28 U.S.C. §1821(c)(2) provides:
A travel allowance equal to the mileage allowance which the
Administrator of General Services has prescribed, pursuant to section
5704, title 5, for official travel of employees of the Federal Government
shall be paid to each witness who travels by privately owned vehicle.
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Computation of mileage under this paragraph shall be made on the
basis of a uniformed table of distances adopted by the Administrator
of General Services.
Clearly, plaintiffs are not entitled to the $160.00 for each witness for mileage
fees. Plaintiffs did not make an attempt to calculate the actual mileage for the
witnesses.

However, plaintiffs are entitled to recover some mileage costs.

According to the GSA’s website, the federal government’s privately owned vehicle
mileage reimbursement rate for 2013 was $0.56 per mile. Using that number and
the mileage contained in the government’s objection, the Court finds that plaintiffs
are entitled to the following fee for mileage:

$3.92 for Atkinson; $6.16 for

Hunsaker; $14.00 for Burns; and $12.32 for Roach. Thus, the Court AWARDS
$271.40 total for the attendance of the witnesses at the depositions which includes
attendance fees and the mileage fees for all witnesses.
Accordingly, the Court GRANTS in part and DENIES in part plaintiffs’ Bill
of Costs.

The Court AWARDS plaintiff $12,957.75 in costs.

IT IS SO ORDERED.
Signed this 29th day of January, 2014.

Digitally signed by
David R. Herndon
Date: 2014.01.29
15:06:58 -06'00'

Chief Judge
United States District Court

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