Opinion
No. 93 C 0081
July 17, 2000
MEMORANDUM OPINION AND ORDER
Following a bench trial, the Equitable Life Assurance Society of the United States ("Defendant") prevailed in a case brought under the Employee Retirement Income Security Act of 1974 by Dolores Frahm, Royce Terry, Gerald Colson, Laurence Wilneff, Claire Goldberg, and Deborah Cooper (collectively, "Plaintiffs"). Defendant seeks $6,164.25 in its Bill of Costs. Plaintiffs object to various costs requested by the Defendant. For the reasons discussed below, Defendant's Bill of Costs is sustained in part and denied in part.
Fed.R.Civ.P. 54(d) permits an award of costs to prevailing parties. Costs may be awarded only when they are reasonable and necessary to the litigation. See Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 454 (7th Cir. 1998). Costs for the fees specified in 28 U.S.C. § 1920 are presumptively awarded to the prevailing party. See Movitz v. First Nat'l Bank of Chicago, 982 F. Supp. 571, 573 (N.D. Ill. 1997) (citing FASA Corp. v. Playmates Toys, Inc., 108 F.3d 140, 144 (7th Cir. 1997)). The losing party bears the burden of affirmatively demonstrating that the prevailing party is not entitled to certain costs. Id.
28 U.S.C. § 1920 provides, in relevant part:
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title.
Fees for the Court Reporter For All or Part of the Transcript
Plaintiffs do not object to this cost. Accordingly, Defendant will be awarded $403.00 for fees of the court reporter.
Fees for Witnesses
Defendant requests $1,140.75 in witness fees for Kevin Clark, who testified for the defense. Specifically, Defendant seeks reimbursement for $80.00 for two days of Clark's attendance fees, $314.00 for two days of subsistence fees, and $746.75 for travel costs. Witness fees, including transportation expenses and subsistence, are allowable under § 1920(3) pursuant to 28 U.S.C. § 1821.
Plaintiffs argue that because Kevin Clark testified at trial on one day, Defendant cannot recover costs for two days of Clark's attendance at trial and two days of subsistence. To facilitate a smooth trial procedure, Defendant made available Clark for the last two days of trial so as to not disrupt the court's trial schedule. Clark was scheduled to testify upon conclusion of the Plaintiffs case, which consisted of presenting six witnesses. Clark could not be available to testify at a moment's notice because his attendance at the trial in Chicago required him to travel from New York. Thus, Clark's two day attendance and subsistence expenses were reasonablely and necessarily incurred for the purpose of facilitating an expeditious trial. See Haroco, Inc. v. American Nat'l Bank and Trust Co. of Chicago, 38 F.3d 1429, 1442 (7th Cir. 1994) (citing Spanish Action Comm. of Chicago v. City of Chicago, 811 F.2d 1129, 1138 (7th Cir. 1987)) (stating that witness fees "compensate the witnesses for their availability and readiness to testify rather than [for their] actual testimony").
In addition, Plaintiffs object to the $80.00 in attendance fees claimed by Defendant because Clark testified as an employee and was presumably paid his salary during the time he attended the trial. Plaintiffs do not cite to any authority for their proposition that a party cannot recover fees for witnesses on its payroll. Witness fees compensate witnesses for the the "time and trouble" to which they are subject above and beyond the normal scope of their work. See Chicago College of Osteopathic Med. v. George A. Fuller Co., 801 F.2d 908, 910 (7th Cir. 1986). Clark's witness fees will be taxed as costs.
Fees for Exemplification and Copies
Defendants also seek to recover $2,099.00 for enlargements of thirteen trial exhibits. A party may recover costs for exemplification of documents where they are helpful to the court. See EEOC v. Scars, Roebuck and Co., 114 F.R.D. 615, 625 (N.D. Ill. 1987). See also 28 U.S.C. § 1920 (4). In the instant case, however, the court thinks the claimed expense is exorbitant. This was a bench trial and the court had been provided with bench books containing exhibits. Defendant was not prohibited from condensing or highlighting parts of lengthy documents or making charts to simplify the presentation of evidence, but it was not necessary to create $200+ color "blow-ups" for this court. The exhibits now claimed as costs by Defendants did little to aid this court's understanding of the evidence. See BASF Corp. v. The Old World Trading Co., Inc., No. 86 C 5602, 1992 WL 229473, at *3 (N.D. Ill. Sep. 11, 1992) (discussing how some of the prevailing party's "expensive exhibits merely condensed or simplified evidence in a fashion that might be appropriate for a jury but cannot be justified in a bench trial"). In light of the extravagant nature of the exemplification costs, the court will limit recovery of the requested costs to $200.
Docket Fees 28 U.S.C. § 1923 expressly provides for the taxation of docketing fees. In the usual case, plaintiffs pay docketing fees as part of the cost of filing a case. The court is confused as to why Defendant incurred such fees, especially in light of Defendant's failure to provide any receipts documenting the payment of such fees. The $20.00 sought as docketing fees is denied.
Deposition Expenses (Other Costs)
The Defendant seeks costs of $2,501.50 for deposition transcripts. Plaintiffs object on two grounds. First, they note correctly that the charge for the deposition transcript of Calvin D. Kanter exceeds the $0.75 per page copy rate set by the Judicial Conference. See Local Rule 45; Cengr, 135 F.3d at 455. Defendant contends that the rates set by the Judicial Conference apply only to transcripts ordered from official court reporters and not private court reporters. Defendant, however, relies on a case which was abrogated by the Seventh Circuit. See Cengr, 135 F.3d at 456 (holding that the Judicial Conference rates apply to both official and private court reporters). Transcript costs will be reduced by $36.00.
Further, the Plaintiffs argue that the costs of hand delivery of depositions is not authorized by statute. Defendant counters that because the depositions of the six individual plaintiffs transpired over a period of one month, hand delivery was necessary to expedite the preparation of previous deponents for upcoming depositions. The court believes that Defendant's position is reasonable as a part of deposition expenses, especially in light of the fact that Defendant demonstrated restraint by not ordering expedited transcripts. The $22.50 incurred for hand delivery will be allowed to stand.
Further Reduction
Finally, Plaintiffs suggest that the court reduce Defendants' taxable costs by at least 50% to penalize Defendants for purported "overreaching" in its assessment of costs. The cases cited by Plaintiffs in support of their proposition involved blatant misconduct. See Jansen v. Packaging Corp. of America, 898 F. Supp. 625, 629 (N.D. Ill. 1995) (characterizing the prevailing party's requests for costs as "plainly impermissible");Nochowitz v. Ernst Young, 864 F. Supp. 59, 60 (N.D. Ill. 1994) ("misleading" and "not even colorable"). Plaintiffs' argument is frivolous. The bill of costs submitted by Defendant does not indicate that it is requesting any costs in bad faith.
Conclusion
For the foregoing reasons, Defendant's Bill of Costs will be partially taxed for a total sum of $4,209.25.