Szany v. Garcia et al

Filing 390

OPINION AND ORDER: Plaintiff Denise Szany's Objections to Defendant Jaime Garcia's Bill of Costs 384 are OVERRULED; Plaintiff Denise Szany's Objections to Defendant City of Hammond's Bill of Costs 385 are OVERRULED in part a nd SUSTAINED in part. Hammond's allowable costs are reduced, as discussed above, by $294.85. Plaintiff Denise Szany is ORDERED to pay costs to Defendant Jaime Garcia in the amount of $1910.20 and to Defendant City of Hammond in the amount of $6,263.45. Signed by Judge Philip P Simon on 8/21/2020. (bas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DENISE SZANY,
Plaintiff,
v.
JAIME GARCIA, and
CITY OF HAMMOND,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 2:17-cv-74-PPS-JPK

OPINION AND ORDER
This matter is before the Court on the plaintiff’s objections to the defendants’
Bills of Costs. [DE 384, 385.] I previously granted summary judgment in favor of
defendant the City of Hammond and against plaintiff Denise Szany. [DE 374.] I also
dismissed certain state law claims which had been brought against defendant Jaime
Garcia. Those claims were dismissed because without any federal claims against
Hammond, there was no jurisdiction for me to hear a case between on Indiana resident
suing another Indiana resident for Indiana state law torts. Judgment was entered and
now both Hammond and Garcia seek the taxation of costs against Szany. Hammond
seeks $6558.30 [DE 379] and Garcia seeks $1,910.20 [DE 381]. Szany opposes both
requests [DE 384, 385], arguing on multiple grounds that costs should not be taxed
against her in favor of either party, and secondly, that in the event they are, the
amounts sought should be reduced. As discussed below, Szany’s objections are mostly
without merit and so costs will be taxed against her, albeit in a slightly reduced amount.

Federal Rule of Civil Procedure 54(d)(1) governs the award of costs. Costs other
than attorneys’ fees are allowed as a matter of course to the prevailing party unless the
Court directs otherwise. Fed. R. Civ. P. 54(d)(1). While the district court has wide
discretion in awarding costs, Rule 54(d)(1) creates a “presumption in favor of a cost
award” as long as the costs are within the categories listed in 28 U.S.C. § 1920. Cefalu v.
Village of Elk Grove, 211 F.3d 416, 427 (7th Cir. 2000); see also Beamon v. Marshall & Isley
Trust Co., 411 F.3d 854, 864 (7th Cir. 2005) (“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.”). Indeed, the Seventh Circuit has gone so
far as to say there is a “strong presumption” that a prevailing party is entitled to its
costs. U.S. Neurosurgical, Inc. v. City of Chicago, 572 F.3d 325, 333 (7th Cir. 2009). “This
presumption ‘is difficult to overcome’ and therefore, ‘the district court’s discretion is
narrowly confined—the court must award costs unless it states good reasons for
denying them.’” Richardson v. Chicago Transit Auth., 926 F.3d 881, 893 (7th Cir. 2019)
(citations omitted).
Szany does not deny that Hammond or Garcia are prevailing parties in this
litigation. Instead she merely asks me to use my discretion to deny them costs. In
support of her argument she cites to the Fourth Circuit’s decision in Ellis v. Granton
Thornton LLP, 434 F. App’x 232 (4th Cir. 2011). In Ellis, the Fourth Circuit spelled out
five factors to consider when confronted with an objection to bill of costs: (1)
misconduct by the prevailing party; (2) the unsuccessful party’s inability to pay the
-2-

costs; (3) the excessiveness of the costs in a particular case; (4) the limited value of the
prevailing party's victory; or (5) the closeness and difficulty of the issues decided.” Ellis
434 F. App’x at 235. Szany’s reliance to out-of-circuit precedent is rather unhelpful, as
the Seventh Circuit handles the issue differently. “In Rivera [v. City of Chicago, 469 F.3d
631, 635-36 (7th Cir. 2006)] we instructed that, after a finding that the losing party is too
poor to pay costs, district courts should consider ‘the amount of costs, the good faith of
the losing party, and the closeness and difficulty of the issues raised.’” Bell v. Bd. of
Educ. of Proviso Twp. High Sch. Dist. 209, 662 F. App'x 460, 463 (7th Cir. 2016). Thus, a
finding of indigency is a perquisite to any finding that a party should not have to pay a
prevailing opponent’s costs. And Szany makes no effort to show she is indigent.
Furthermore, even if I were to consider her good faith in this litigation and the
closeness and difficulty of the issues raised, those would not tip the scales in Szany’s
favor. In multiple orders and opinions I had to admonish Szany (or rather her counsel)
to stop violating local rules, and in other instances I had serious doubts as to counsel’s
good faith in some of the positions taken. [See DE 249 at 7, DE 284 at 12-13, DE 301 at 7,
DE 322-23, DE 374 at 11-12, 15, 17, 22-23, 27-28, 43-44.] Nor was this particularly a close
case, especially as to Hammond. I granted summary judgment in Hammond’s favor
which required a finding that no reasonable jury could have decided this case in
Szany’s favor. Truthfully, the case was “difficult” not because of the issues involved,
but only because of how counsel approached this case. Finally, Szany’s case obviously

-3-

involved serious allegations of misconduct on Garcia’s part, but that does not erode the
presumption in favor of awarding costs to prevailing defendants.
Szany’s second argument is likewise unpersuasive. She attaches the contract
entered into by the Fraternal Order of Police and Hammond then points to its
indemnification provisions. She says that under the contract, she is indemnified by the
City of Hammond for “all sums” she is “obligated to pay by reason of liability imposed
by law upon” her individually. [DE 385 at 3.] She also posits that Garcia’s counsel was
paid for by the City of Hammond and so she should not have to pay his costs either.
[DE 384 at 4.] That may well be the case, but I will not consider the issue because it puts
the cart before the horse. I can’t short circuit things and deny either Hammond’s or
Garcia’s bill of costs because Szany says under her union contract those costs would
eventually be indemnified. That contract is not at issue in the case and Szany never
included a claim for indemnification in her lawsuit. If she is entitled to indemnification
from Hammond, she should seek it. If Hammond wrongly denies it, then maybe she
can file another lawsuit for indemnification. But let’s hope not.
With the issue as to whether costs should be taxed settled in favor of Hammond
and Garcia, the next question is in what amounts. Under the relevant statute, costs
allowed include: (1) clerk and marshal fees; (2) costs of printed or electronically
recorded transcripts necessarily obtained for use in the case; (3) costs and fees for
printing and witnesses; (4) costs for exemplification and the costs of making copies of
any materials where the copies are necessarily obtained for use in the case; (5) docket
-4-

fees; and (6) compensation of court-appointed experts. 28 U.S.C. § 1920. In determining
whether costs were necessary, all the prevailing party needs to show is that they were
“reasonably and prudently obtained” at the time they were obtained based on “how
things seemed when the expenditures were made, without the benefit of hindsight.”
Nat'l Org. for Women, Inc. v. Scheidler, 750 F.3d 696, 699 (7th Cir. 2014). Likewise, when
arguing that asserted costs are not reasonable, the losing party cannot rely only on
“hyperbole” but instead needs “legal argument” to show “that taxed costs are not
appropriate.” Beamon v. Marshall & Ilsley Tr. Co., 411 F.3d 854, 864 (7th Cir. 2005).
Szany objects to numerous specific costs sought by Hammond and Garcia. I’ll
march through those objections in turn, overruling most but sustaining others.
•

Szany objects to $55.88 and $89.25 in costs associated with creating two
hearing transcripts ordered by Hammond. [DE 385 at 4.] Hammond says
these transcripts were necessary because it needed to review them in
order to identify confidential information which needed to be redacted.
That some of Hammond’s requests to redact were ultimately denied by
the Court is beside the point. Again, the question is whether it was
prudent at the time. Sheilder, 750 F.3d at 699. Hammond is seeking to
recover the cost associated with preparing the transcript charged by the
court reporter, which is allowable. Szany’s objections to these costs are
overruled.

•

Szany objects to $6.80 of copies of a Notice of Deposition and
Supplemental Discovery responses, arguing in an ipse dixit fashion that
these copies must have been only for the convenience of counsel and are
thus not taxable. [DE 385 at 4.] Hammond responds these were copies
-5-

necessary for service on plaintiff and under 28 U.S.C. 1920(4), the costs
for copies of materials are expressly allowed. Szany’s objection to this
cost is overruled.
•

Szany objects to $1,507.50 in costs associated with the video recording of
her deposition. [DE 385 at 4-5.] The basis for her objection is that in her
counsel’s opinion, written transcripts are generally sufficient, except at
trial. This objection has no basis in law, as there was no way for
Hammond to know there would not be a trial in this matter at the time
this cost was incurred. The reasonableness of a cost must be considered
without hindsight. Scheidler, 750 F.3d at 699. Szany’s objection to this cost
is overruled.

•

Szany objects to $20.00 for the creation of a DVD of audio files and
$100.00 for the creation of CDs of files produced during discovery. [DE
385 at 5.] She asserts, again without authority, that this should not be
recoverable. But “[t]he costs of conversion to an agreed-upon production
format are taxable as the functional equivalent of making copies[.]”
Bateman et al., Fed. Proc. L. Ed. § 51:101 (2020); see also Cordance Corp. v.
Amazon.com, Inc., 855 F. Supp. 2d 244, 250 (D. Del. 2012) (“ediscovery
exchanged would be the functional equivalent of making copies and
governed by the provisions of § 1920(4).”). $20.00 for the time and effort
to create a DVD of audio files and $100.00 for a CD is not per se
unreasonable or without basis. Szany’s objection to these costs are
overruled.

•

Szany objects to $617.00 in costs to create transcripts of audio files
produced in discovery pursuant to a court order. Hammond says she
misconstrues what this charge relates to and has attached an invoice for
this amount. It appears plainly to relate to the costs of transcripts, which
-6-

are recoverable under 20 U.S.C. § 1920(2). Szany’s objection to this cost is
overruled.
•

Szany objects to $101.20 in costs for copies of documents Hammond says
were used during depositions on the basis that Hammond does not
specify what exhibits were copied or why they were necessary. [DE 385
at 6.] In responding to Szany’s objections, Hammond does not contest
this point or elaborate on this cost. “When a prevailing party does not
identify the exhibits for which it claims costs, the ‘court should deny
awarding costs for the exhibits because it is impossible to determine
whether the costs were necessary for use in the case.’” Trading Techs. Int’l,
Inc. v. eSpeed, Inc., 750 F. Supp. 2d 962, 981 (N.D. Ill. 2010) (citation
omitted). Szany’s objection to this cost is sustained and $101.20 in costs
sought by Hammond will be disallowed.

•

Szany objects generally to “Shipping and Delivery Fees.” It’s unclear
exactly what she is referring to, but it appears to relate to a $15.00
shipping charge relating to Szany’s video deposition which was charged
to Hammond. Since these costs were charged, and incidental to the video
transcription of the deposition, I see no basis to deny them. Szany’s
objection to this cost is overruled.

•

Szany objects to deposition transcription charges to the extent they
exceed the $3.65 rate established by the Judicial Conference. [DE 385 at
7.] Hammond concedes that it sought reimbursement at a rate above the
allowed rate for some transcripts and that its costs should be reduced by
$193.65. [DE 386 at 7.] Szany’s objection to this cost is sustained and
$193.65 in costs sought by Hammond will be disallowed.

•

Szany objects to a court reporter’s minimum appearance fee of $112.50
related to the deposition of Michael Leimbach. Both sides point me to
-7-

District Court decisions, some which have held such costs are
recoverable as incidental to transcription, others which have held them
not recoverable because they are in excess of the per-page cost allowed. I
need no resolve this apparent conflict because the Seventh Circuit
already has, stating: “[a]s for the deposition attendance fees charged by
the court reporter, we have previously held that even though these fees
are not specifically mentioned in the statute, the district court may award
them in its discretion pursuant to 28 U.S.C. § 1920(2).” Held v. Held, 137
F.3d 998, 1002 (7th Cir. 1998). Here, because Hammond incurred this fee
and there’s no reason to find it to have been unreasonably incurred at the
time, I will allow it. Szany’s objection to this cost is overruled.
•

Szany objects to the $40 witness fee paid to Mr. Leimbach for his
deposition. [DE 385 at 8.] The basis for her objection is that while
Hammond submitted a check in that amount made out to Leimbach, it
did not submit evidence that this check was actually cashed or deposited.
She cites no authority requiring such a level of proof, although I agree
such evidence would be great in a perfect world. But a party’s backup for
its costs need not be perfect and there is no reason to think Hammond is
committing fraud on the Court and trying to extract costs it did not
actually incur. Szany’s objection to this cost is overruled.

•

Szany objects to the deposition appearance fees and transcript costs
sought by Defendant Garcia on some of the same basis rejected above
and on the basis that such costs are duplicative of those sought by
Hammond. [DE 384 at 4-5.] To the extent her arguments against Garcia
overlap with Hammond, they are without merit. Furthermore, Garcia has
offered up evidence of the three checks paid for the specific depositions

-8-

in question, which are not duplicative of costs sought by Hammond. [DE
389-1, 389-2, 389-3.] Szany’s objections to these costs are overruled.
ACCORDINGLY: Plaintiff Denise Szany’s Objections to Defendant Jaime
Garcia’s Bill of Costs [DE 384] are OVERRULED; Plaintiff Denise Szany’s Objections to
Defendant City of Hammond’s Bill of Costs [DE 385] are OVERRULED in part and
SUSTAINED in part. Hammond’s allowable costs are reduced, as discussed above, by
$294.85.
Plaintiff Denise Szany is ORDERED to pay costs to Defendant Jaime Garcia in the
amount of $1910.20 and to Defendant City of Hammond in the amount of $6,263.45.
SO ORDERED on August 21, 2020.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

-9-