Capps v. Drake et al

Filing 255

ORDER GRANTING in part and DENYING in part 179 Plaintiff's Bill of Costs. Defendants are ORDERED to pay Plaintiff Isaac Capps's costs in the amount of $4,818.94. Signed by Judge Nancy J. Rosenstengel on 3/30/2017. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ISSAC W. CAPPS,
Plaintiff,
vs.
KEVIN DRAKE, JARED FREEMAN,
SHAWN ISAACS, JAMES TROGOLO,
KEVIN ROYE, and BRICE SHAFFER,
Defendants.

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Case No. 3:14-CV-00441-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
On February 1, 2016, a jury found in favor of Plaintiff Isaac Capps on his claim of
excessive force against Defendants James Trogolo and Kevin Roye and on his claim of
failure to intervene against all Defendants (Doc. 171). The jury awarded Plaintiff
compensatory damages of $22,000 and punitive damages of $5,000 against Defendant
Trogolo, $5,000 against Defendant Roye, and $23 each against Defendants Drake,
Freeman, Isaacs, and Shaffer (Id.). The Clerk entered Judgment on February 4, 2016
(Doc. 177).
On February 12, 2016, Plaintiff filed a Bill of Costs, seeking a total of $7,424.07 in
costs including the court filing fee, service and subpoena fees, court reporter fees, fees
for copies of medical records and photos used at trial, hotel costs incurred for various
depositions, mandatory court settlement conferences, and trial, and fees for reservation

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of a library room where depositions were taken (Doc. 179). 1 All Defendants objected,
taking issue with specific items in the Bill of Costs and asking the Court to reduce the
amount of costs awarded (see Docs. 188, 189, 191).
In response, Plaintiff acknowledges that hotel costs are not recoverable under
28 U.S.C. § 1920 and has agreed to withdraw the $2,250.52 in hotel fees from the Bill of
Costs. Because those fees were related to the litigation and necessarily incurred,
however, Plaintiff seeks to add the hotel fees to the request for attorney fees under
42 U.S.C. § 1988. Plaintiff similarly defends the remainder of the submitted costs as
authorized and “necessarily incurred” in this case.
LEGAL STANDARD
Federal Rule of Civil Procedure 54(d)(1) authorizes federal district courts to
award costs to prevailing parties in lawsuits. See FED. R. CIV. P. 54(d)(1) (“Unless a
federal statute, these rules, or a court order provides otherwise, costs—other than
attorney’s fees—should be allowed to the prevailing party.”). Specifically, the
recoverable costs include: (1) fees of the clerk and marshal; (2) fees for printed or
electronically recorded transcripts; (3) fees and disbursements for printing and
witnesses; (4) fees for exemplification and the costs of making copies; (5) docket fees
under Section 1923; and (6) compensation of court appointed experts, interpreters, and
costs of special interpretation services under section 1828 of this title. 28 U.S.C. § 1920.
The Seventh Circuit has noted that the rule provides a “presumption that the
losing party will pay costs but grants the court discretion to direct otherwise.” Rivera v.
Plaintiff also seeks his attorney’s fees pursuant to 42 U.S.C. §1988 (see Docs. 186, 187, 219, 221).
The motions relating to attorney’s fees were referred to Chief Judge Michael J. Reagan
(see Doc. 223), and a hearing was held on September 6, 2016 (see Doc. 235).
1

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City of Chicago, 469 F.3d 631, 634 (7th Cir. 2006). “The presumption in favor of awarding
costs to the prevailing party is difficult to overcome, and the district court’s discretion is
narrowly confined—the court must award costs unless it states good reasons for
denying them.” Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 945 (7th Cir. 1997)
(citing Congregation of the Passion, Holy Cross Province v. Touche, Ross & Co., 954 F.2d 219,
222 (7th Cir. 1988)). “Generally, only misconduct by the prevailing party worthy of a
penalty or the losing party’s inability to pay will suffice to justify denying costs.” Id.
DISCUSSION
As an initial matter, Defendants Drake, Freeman, and Isaacs argue that Plaintiff
failed to verify his claimed costs by attaching an affidavit attesting that the costs are
correct and were necessarily incurred, as required by 28 U.S.C. § 1924; consequently, the
Bill of Costs should be rejected in its entirety. In response, Plaintiff argues that a separate
affidavit is not required because the Bill of Costs form provided by the Court (see Doc.
179) contains a declaration mirroring the language of 28 U.S.C. § 1924.
The Court agrees with Plaintiff and finds the declaration provided by counsel on
the Bill of Costs form is sufficient. Counsel declared that the costs are “correct and
necessarily incurred” and were “actually and necessarily performed.” Counsel signed
the declaration under penalty of perjury. Because the requirements of 28 U.S.C. § 1924
have been met, the Bill of Costs will not be denied in its entirety.
A.

Costs Related to Depositions of Jon Graskewicz and Mark Woodsides

Defendants Drake, Freeman, and Isaacs object to Plaintiff’s request for
reimbursement for the cost of depositions taken of Jon Graskewicz and Mark
Woodsides, as well as subpoena fees and mileage for these two individuals. Defendants
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assert that Plaintiff is only entitled to deposition fees when used at trial and, in the
court’s discretion, when reasonably necessary to the case—not for depositions that are
purely investigative in nature. Defendants cite Local Rule 54.2(6), which in turn cites
28 U.S.C. § 1920 (2), (3), and (6). Because Graskewicz and Woodsides were not witnesses
at trial and their depositions—according to Defendants—were purely investigative,
Plaintiff’s costs should be reduced by $248.75 for the transcripts of these depositions and
$103 for witness fees. In response, Plaintiff argues that these deponents were officers
who participated in the arrest of Plaintiff, their depositions were vital to preparing for
the direct examination of another witness at trial, and their testimony was used in both
Plaintiff’s and Defendants’ summary judgment papers. As such, they were necessarily
obtained for use in the case, and reimbursement of that cost is authorized by 28 U.S.C.
§ 1920.
The Court agrees with Plaintiff that these deposition costs are reimbursable. It is
well established in the Seventh Circuit that “the expenses of discovery depositions
shown to be reasonably necessary to the case are recoverable even if the depositions are
not used as evidence at trial.” State of Ill. v. Sangamo Const. Co., 657 F.2d 855, 867 (7th Cir.
1981). Even the case cited by Defendants acknowledges that the “introduction of a
deposition at trial is not a prerequisite for finding that it was necessary to take the
deposition.” Hudson v. Nabisco Brands, Inc., 758 F.2d 1237, 1243 (7th Cir. 1985), overruled
on other grounds by Provident Bank v. Manor Steel Corp., 882 F.2d 258 (7th Cir. 1989). The
Seventh Circuit in that case further noted that “[e]ven the costs related to discovery
depositions may be assessed, provided that the deposition is not . . . purely investigative

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in nature . . . .” Id. (internal citation omitted). Given that the deposition transcripts of
Graskewicz and Woodsides were attached as exhibits to Defendants’ motion for
summary judgment, the Court cannot say that these depositions were merely
investigatory in nature. Plaintiff is allowed these costs, and the objection is overruled.
B.

Background Report of and Service to Evelyn Mendez

Defendants next dispute Plaintiff’s $125 fee for a “Comprehensive Background
Report” of Evelyn Mendez and $75 for service of process on Mendez. Defendants assert
that background reports are not one of the costs listed in 28 U.S.C. § 1920 or Local Rule
54.2 and, thus, must be borne by the party incurring them. Defendant Trogolo also
asserts that the investigation was unnecessary, because Plaintiff had already located and
interviewed Mendez, whose father owns and operates the restaurant next door to the
hotel parking lot where the incident occurred. Furthermore, Defendants argue Plaintiff
cannot recover more than the United States Marshal charges for service of process,
which was $55 per hour at the time. 28 C.F.R. 0114(a). Therefore, Plaintiff’s costs should
be reduced by $125 for the background check and $20 for service of Mendez.
In response to the service fee, Plaintiff notes that the United States Marshal
charges $55 per hour or portion thereof, plus travel cost and any other out-of-pocket
expenses. 28 C.F.R. 0114(a). Plaintiff asserts that it took her private process server
between 72 and 84 minutes round-trip from Carbondale, Illinois, to West Frankfort,
Illinois, to serve Mendez, which would equal a $110 charge by the United States
Marshal. Once expenses are added, Plaintiff claims, $75 is a reasonable cost.

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The Seventh Circuit permits “the prevailing party to recover service costs that do
not exceed the marshal’s fees, no matter who actually effected service.” Collins v. Gorman,
96 F.3d 1057, 1060 (7th Cir. 1996). Here, the Court finds Plaintiff’s $75 service fee to be
reasonable. Plaintiff asserts that it took her process server more than an hour to serve
Mendez, and Defendants have not disputed Plaintiff’s claim. Accordingly, the objection
is overruled, and the Court will not reduce Plaintiff’s Bill of Costs by the requested $20.
With regard to the “Comprehensive Background Report,” Plaintiff asserts that the
$125 fee was to locate Mendez. While Mendez’s father did own the restaurant next door
to the hotel where the incident occurred, the restaurant had permanently closed by the
time this case was filed. And, although Plaintiff reached Mendez by phone, she did not
want to testify and refused to provide her address. Costs associated with personally
serving a witness, including skip trace fees incurred in investigating the witness’s
current address, are recoverable by the prevailing party. See Sandoval v. Little Concessions,
LLC, No. 10 C 3895, 2011 WL 780874, at *1 (N.D. Ill. Feb. 28, 2011); see also Elusta v. City of
Chicago, 760 F. Supp. 2d 792, 803 (N.D. Ill. 2010) (“Fees for subpoenas and service of
process are generally recoverable as costs, but not for a deposition witness who is never
deposed.”); Kateeb v. Dominick’s Finer Foods, Inc., No. 96 C 1229, 1997 WL 630185, at *2
(N.D. Ill. Sept. 30, 1997) (noting that skip trace fees may be recovered for a witness who
is expected to be called at trial). Here, Mendez was located by the skip trace, she was
served with the subpoena, and she provided testimony. Therefore, the $125 fee to locate
her is recoverable. The objection is overruled.

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C.

Library Room Fee

Defendants next reject a $15 fee for renting a library room to hold depositions.
Defendants assert that this is not a cost enumerated by statute or Local Rule; thus, the
cost must be borne by Plaintiff. Further, Defendant Trogolo argues that arrangements
were made for these depositions to take place at the West Frankfort City Hall, but
Plaintiff instead elected to take the depositions at the library. Thus, the fee is
unnecessary. Plaintiff provides no argument in support of this cost, and case law
indicates such room fees are not compensable. See McIlveen v. Stone Container Corp., 910
F.2d 1581, 1584 (7th Cir. 1990) (upholding district court’s denial of room rental fee when
deposition could have been conducted at the witness’s home or office); Mason v.
Smithkline Beacham Corp., No. 05-1252, 2008 WL 5397579, at *3 (C.D. Ill. Oct. 7, 2008)
(room rental fees for depositions are “more akin to administrative fees incurred in the
cost of doing business”). Defendants’ objection is sustained; Plaintiff’s Bill of Costs shall
be reduced by $15.
D.

Transcript of Dash-Cam Video

Defendants also contend that the $105 for a transcript of the audio from the
dash-cam video should not be allowed because the transcript was not used as evidence
or for any other purpose at trial. Plaintiff asserts that the video and the transcript were
used by Defendants Drake, Freeman, and Isaacs as an exhibit in support of summary
judgment, as well as by Plaintiff at Defendants’ depositions. “A court may award costs
for transcripts as long as they were ‘reasonably necessary;’ transcripts need not,
however, be ‘absolutely indispensable’ to the litigation.” Manson v. City of Chicago, 825 F.
Supp. 2d 952, 957 (N.D. Ill. 2011) (cost for transcript of a City of Chicago Administrative
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hearing was awarded because it was reasonably necessary, even if the information
discovered was not used at trial). Here, the incident at issue was recorded by the
dash-cam video, and the transcript was used by both parties to advance their cases,
regardless of whether it was used at trial. Consequently, the Court finds the transcript
was reasonably necessary to the case, and Plaintiff is entitled to recover this cost.
Defendants’ objection is overruled.
E.

Deposition Transcripts

Defendants next take aim at Plaintiff’s request for reimbursement for both a hard
copy and an electronic copy of each Defendant’s deposition. Defendants argue that only
fees for copies “necessarily obtained for use in the case”—which does not include second
copies—are recoverable, and electronic copies are equivalent to a “second or additional
copy.” Thus, Plaintiff is not entitled to charges for the additional electronic copies
Plaintiff ordered. Plaintiff does not appear to contest this objection, and such costs
generally are not permissible. See Goldberg v. 401 N. Wabash Venture LLC, No. 09 C 6455,
2013 WL 4506071, at *3 (N.D. Ill. Aug. 23, 2013) (quoting DSM Desotech, Inc. v. 3D Systems
Corp., No. 08 cv 1531, 2013 WL 3168730, at *4 (N.D. Ill. June 20, 2013) (holding that
electronic copies are not reasonably necessary to the case because they are generally
considered to be obtained for the convenience of counsel, “particularly where the parties
also obtained stenographic transcripts of the depositions”); Hernandez–Martinez v.
Chipotle Mexican Grill, Inc., No. 11 C 4990, 2013 WL 23 84251, at *3 (N.D. Ill. May 30, 2013)
(“Delivery fees, second copies, electronic versions of the transcript, and so forth are not
allowable because they are regarded as a convenience or an ordinary business expense

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for the lawyer.”). The Court, therefore, sustains Defendants’ objection and reduces
Plaintiff’s costs by $220.
F.

Copying Fee

Defendants Drake, Freeman, and Isaacs also seek to reduce Plaintiff’s Bill of Costs
by $2.25 for copies of exhibits used at two depositions, although they admit that costs for
exhibits are recoverable if the exhibits are “reasonable and necessary, in that they aid in
understanding an issue in the case.” See Nilssen v. Osram Sylvania, Inc., No. 01 C 3585,
2007 WL 257711, at *3 (N.D. Ill. Jan. 23, 2007) (disallowing costs of copies where 837
pages of exhibits were scanned and copied by a court reporter). Plaintiff argues that such
an objection is not well taken and that the Seventh Circuit allows copying charges, citing
Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir. 2008). Given the
relatively minor cost of exhibit copies in this case and Seventh Circuit law supporting
such charges, the Court finds a $2.25 charge reasonable. Defendants’ objection is
overruled.
G.

Postage Fees

The next charge disputed by Defendants Drake, Freeman, and Isaacs is $49.27 in
postage fees related to service of the complaint, service of subpoenas, and delivery of
deposition transcripts. Defendants argue that postage costs are generally not recoverable
as costs because they are ordinary business expenses and are not one of the enumerated
costs under § 1920 or Local Rule 54.2. Plaintiff generally states that the objection is not
well taken and again cites Little, which found delivery charges to be recoverable if
reasonable.

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“Although postage is not a specifically enumerated cost under § 1920, the Seventh
Circuit ‘has construed section 1920 to include amounts spent on filing fees, postage,
telephone calls and delivery charges.’” Geiger v. Aetna Life Ins. Co., No. 15-CV-3791, 2016
WL 5391206, at *4 (N.D. Ill. Sept. 27, 2016) (quoting Tchemkou v. Mukasey, 517 F.3d 506,
512 (7th Cir. 2008)); see also Little, 514 F.3d at 701-02; Burda v. M. Ecker Co., 2 F.3d 769, 778
(7th Cir. 1993). But see Wahl v. Carrier Mfg. Co., 511 F.2d 209, 216–17 (7th Cir. 1975)
(holding that postage charges are not recoverable as costs). Because the Seventh Circuit
has allowed postage fees to be recovered, the Court overrules Defendants’ objection to
Plaintiff’s $49.27 postage fee.
H.

Trial Transcript

Finally, Defendants contest Plaintiff’s $119.61 charge for a transcript of Dr. Ahsan
Mahmood’s trial testimony. Defendants argue that when a trial is short and simple, as
this trial was, costs for daily transcripts generally are not reasonably necessary and thus
may not be recovered. In response, Plaintiff notes that counsel purchased a transcript of
Dr. Mahmood’s direct examination only to prepare Plaintiff’s closing argument. Plaintiff
argues that Dr. Mahmood’s testimony regarding Plaintiff’s post-traumatic stress
disorder had to be relayed near-verbatim to the jury during closing. Further, only the
portion of Dr. Mahmood’s testimony that was necessary for counsel’s use in closing was
requested and used at trial.
“A court may tax as costs the ‘fees of the court reporter for all or any part of the
stenographic transcript necessarily obtained for use in the case . . . includ[ing] trial
transcripts . . . .” Majeske v. City of Chicago, 218 F.3d 816, 825 (7th Cir. 2000). Where a trial

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is lengthy and complex, the cost of daily trial transcripts may be recovered. Id. Courts
should also consider: (1) “whether a daily transcript was necessary to minimize
disagreement over the testimony of witnesses,” (2) “whether proposed findings of fact
were

required,”

(3)

“whether

the

case

involved

expert

witnesses

whose

cross-examination required knowledge of the exact wording of their previous testimony
or that of any other witness,” (4) “the size of the claim,” and (5) “the importance of
witness credibility.” Lewis v. City of Chicago, No. 04 C 6050, 2012 WL 6720411, at *7 (N.D.
Ill. Dec. 21, 2012) (citation omitted).
Here, the trial lasted four days, the case was fairly straightforward, and
Defendants presented no medical testimony to contradict or disagree with Dr.
Mahmood. Plaintiff’s counsel could have prepared for closing argument just as well by
taking careful notes during trial, particularly considering her paralegal was present
throughout the duration of trial. See Stallings v. City of Johnston City, No.
13-CV-422-DRH-SCW, 2016 WL 4474683, at *5 (S.D. Ill. Aug. 25, 2016) (“[W]ith two
defense attorneys present, it is clear that daily copy was merely a convenience to avoid
having to take notes. Although this is perfectly acceptable, it is not something the
opposing party should be required to fund, as the purpose is exclusively for counsel’s
convenience.”); Rawal v. United Air Lines, Inc., No. 07 C 5561, 2012 WL 581146, at *2 (N.D.
Ill. Feb. 22, 2012) (finding decision to obtain daily transcript a matter of convenience
rather than necessity). Accordingly, the Court sustains Defendants’ objection, and the
amount of recoverable costs is reduced by $119.61.

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CONCLUSION
For these reasons, the Court GRANTS in part and DENIES in part Plaintiff’s Bill
of Costs (Doc. 179). Defendants are ORDERED to pay Plaintiff Isaac Capps’s costs in the
amount of $4,818.94.
IT IS SO ORDERED.
DATED: March 30, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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