Midwest Fence Corporation et al v. United States Department of Transportation et al, No. 1:2010cv05627 - Document 533 (N.D. Ill. 2018)
Court Description: For the reasons stated in the attached memorandum opinion and order, the Court grants in part and denies in part both bills of costs. For the Tollway Defendants, the Court taxes against Midwest $16,577.26 in costs, comprising: $15,040.7 0 in court reporting and transcript costs; $1,320.16 in electronic discovery costs; and $216.40 in third-party discovery costs. For the IDOT Defendants, the Court taxes against Midwest $26,333.25 in costs, comprising: $11,124.80 in court reporting and transcript costs; $11,054.75 in subpoena and service of process costs; and $4,153.70 in document production costs. Signed by the Honorable Harry D. Leinenweber on 3/29/2018:Mailed notice(maf)
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Midwest Fence Corporation et al v. United States Department of Transportation et al Doc. 533 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MIDWEST FENCE CORPORATION, Plaintiff, Case No. 10 C 5627 v. Judge Harry D. Leinenweber THE UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Defendants. MEMORANDUM OPINION AND ORDER Defendants Illinois Department of Transportation (“IDOT”) and Illinois State Toll Highway Authority (“Tollway”) filed Motions to recover bills of cost. (ECF Nos. 506-09, 518.) For the reasons stated herein, the Court grants in part and denies in part both Motions. I. Plaintiff Midwest BACKGROUND Fence is a specialty contractor that typically bids on guardrail and fencing construction projects as a subcontractor. advantages in Defendants administer state programs that offer highway construction Business Enterprises (“DBEs”). contracting to Disadvantage DBEs are small businesses owned and managed by individuals who are both socially and economically disadvantaged and who have historically faced discrimination in Dockets.Justia.com the construction industry. Midwest Fence — which does not qualify as a DBE — sued Defendants on the theory that the DBE programs violate Midwest’s Fourteenth Amendment right to equal protection under the law. finding interest that in The Court granted summary judgment for Defendants, the DBE remedying programs a serve history construction contracting. of a compelling discrimination governmental in highway Midwest Fence Corp. v. United States Dep’t of Transp., 84 F.Supp.3d 705, 740 (N.D. Ill. 2015), aff’d, 840 F.3d 932 (7th Cir. 2016). The Seventh Circuit affirmed. After the Seventh Circuit issued its ruling, the IDOT and Tollway Defendants renewed their respective Motions to recover on bills of costs. (ECF Nos. 506-09, 518.) However, Midwest Fence then petitioned the Supreme Court for certiorari, and this Court stayed the bills of costs while that petition pended. The Supreme Court has since denied certiorari, so this Court turns at last to the Defendants’ respective bills of costs. II. Federal Rule of Civil LEGAL STANDARD Procedure 54(d)(1) provides that a prevailing party may obtain reimbursement for certain litigation costs at the conclusion of a lawsuit. The Rule establishes 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.” Beamon v. Marshall & Ilsley Trust - 2 - Co., 411 F.3d 854, 864 (7th Cir. 2005) (citing M.T. Bonk Co. v. Milton Bradley evaluating determine an Co., 945 F.2d application whether the 1404, for claimed 1409 costs, (7th the expenses Cir. Court are 1991)). must City of Chi., omitted). award. 218 F.3d 816, 824 (7th first recoverable second, whether the costs requested are reasonable. Cir. In and, Majeske v. 2000) (citation The Court has “wide latitude” in fixing a reasonable Deimer v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 345 (7th Cir. 1995). III. ANALYSIS As an initial matter, Midwest Fence raises several generic fairness objections that it contends cut against the Defendants’ ability to recover costs in this case. objections now sought-after before costs. considering First, The Court dispatches those the Midwest specifics Fence says of Defendants’ that when the Defendants argued against certiorari at the Supreme Court, they reversed course and argued a position contrary to the one they argued at trial. Supreme Court’s From this, Midwest Fence concludes that the subsequent denial of certiorari signaled that Court’s approval of Defendants’ newly reversed position — which, according to Midwest Fence, mirrored its own position at trial — and so Midwest should no longer be declared the loser and thus susceptible to taxation for costs. - 3 - No analysis of Defendants’ litigation positions necessary here. . . . a denial (whether consistent or otherwise) is The Supreme Court “has rigorously insisted that [of certiorari] carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated.” Maryland v. Baltimore Radio Show, 338 U.S. 912, 919 (1950). A denial of certiorari does not sprinkle holy water on any position argued below, and Midwest Fence is wrong to suggest otherwise. Next, Midwest Fence argues Defendants’ discovery costs should have been far less than they were because Defendants were always required to be in compliance with the Equal Protection Clause and so, Midwest concludes, Defendants were required to have evidence of that compliance on hand before this suit ever got started. Midwest cites no authority for this position and the Court would be surprised if it could. respect the Midwest Constitution thinks that Certainly Defendants’ obligation to predated Midwest’s obligation also Complaint; obviated the but need why for discovery once a suit arose is an enigma. Most broadly, Midwest Fence complains that though it filed and lost its wrongdoing. awarded suit, But absent in the Midwest our has legal losing not been system, party’s - 4 - found costs showing are that guilty of any presumptively costs are not appropriate. Beamon, 411 F.3d at 864. There is no threshold question of the losing party’s malfeasance. Clearly, the Court must reject all of Midwest’s generic objections to the taxation of costs. Yet Midwest also levies some more specific arguments against Defendants’ sought-after costs; these the Court considers in turn. A. Tollway Defendants’ Bill of Costs In total, the Tollway Defendants seek costs of $33,544.77. The Court grants in part and denies in part their bill of costs. 1. Court Reporting and Transcripts The Tollway Defendants seek $15,065.85 in costs under this category as follows: Description Copies of Deposition Transcripts Original Deposition Transcripts Half-Day Court Reporter Attendance Fees Full-Day Court Reporter Attendance Fees Exhibits to Transcripts TOTAL Pages Cost 4,681 pages (at $0.90/page) $4,212.90 2,014 pages (at $3.65/page) 7 separate attendance fees not to exceed $110/each 11 separate attendance fees not to exceed $220/each 2,172 pages (at $0.50/each) $7,351.10 $540.35 $1,850.35 $1,086.00 $15,040.70 - 5 - First, the Court notes that the Tollway Defendants incorrectly calculate this category’s total (based on the above figures) as $15,065.85. (See, Tollway Defs.’ Mem. in Supp. of Revised Bill of Costs at 2-3, ECF No. 509.) The Court corrects that sum to $15,040.70 as reflected in the table above. Copying costs are “necessarily obtained § 1920(4). Here, taxable for the use but in Tollway must the be reasonable case.” Defendants See, represent 28 U.S.C. that referred to and cited these transcripts in their briefs. goes beyond the requirement that, at the time and taken, deposition appeared to be reasonably necessary to the case. they This the Soler v. McHenry, 771 F.Supp. 252, 255 (N.D. Ill. 1991) (citing Illinois v. Sangamo Constr. Co., 657 F.2d 855, 867 (7th Cir. 1981), aff’d sub nom. Tollway nature Soler v. Waite, 989 have also Defendants of document each document prepared, copying cost.” the F.2d 251 (7th appropriately copied, copying the cost number per Cir. 1993). “identif[ied] of page, copies and of the The the each total Druckzentrum Harry Jung GmbH & Co. KG v. Motorola, Inc., No. 09-CV-7231, 2013 WL 147014, at *7 (N.D. Ill. Jan. 11, 2013) (citation requested and transcript internal costs quotation per page marks also omitted). conform, as The Local Rule 54.1(b) dictates they must, to the standards set forth by the Judicial Conference of the United States. - 6 - Judicial Conference of the United States, Federal Court Reporting Program, available at http://www.uscourts.gov/services-forms/federal-court-reportingprogram. Accordingly, these reporting and transcript costs shall be taxed against the Plaintiff. 2. The Electronic Discovery to Plaintiff Tollway Defendants seek $17,110.79 electronic production of documents. in costs for Midwest objects, echoing the Court’s earlier observation that OCR expenses — which account for $3,251.10 of this category’s total — are “typically not recoverable as prevailing-party costs under 28 U.S.C. § 1920(4), because they are incurred purely to make a document searchable (as opposed to readable).” (May 11, 2017 Order at 3, ECF No. 517 (citing Intercontinental Great Brands LLC v. Kellogg N. Am. Co., No. 13 C 321, 2016 WL 316865, at *6 (N.D. Ill. Jan. 26, 2016).) This $3,251.10 Court’s will not earlier-stated be awarded. objection to Midwest also Defendant’s echoes the pursuit of $8,008.83 for “scanning – glass work/heavy litigation services.” (See, Advanced Discovery Invoices at 3, Grp. Ex. 3 to Tollway Defs.’ Bill of Costs, ECF No. 508-3.) Despite the Court’s warning that this “impregnable cost[] description, without more, furnishes no basis for adjudicating reasonableness,” the Tollway Defendants have provided no further elucidation of this term. Order at 3.) That $8,008.83 will not be awarded. - 7 - (May 11, 2017 The balance of the expenses in this category comprises Bates labeling, imaging, CD/DVD creation, and courier service. for Bates labeling have been found to be taxable. Costs DSM Desotech, Inc. v. 3D Sys. Corp., No. 08 CV 1531, 2013 WL 3168730, at *2 (N.D. Ill. June 20, 2013) (collecting cases). Expenses for imaging and the creation of electronic versions of documents are taxable when the parties have agreed to produce documents electronically, but Defendants have not produced evidence of any such agreement here. See, e.g., Specht v. Google Inc., No. 09 C 2572, 2011 WL 2565666, at *3 (N.D. Ill. June 27, 2011). Courier service costs are typically considered overhead and not allowable as costs. Chi. Bd. Options Exch., Inc. v. Int’l Sec. Exch., LLC, No. 07 CV 623, 2014 WL 125937, at *3 (N.D. Ill. Jan. 14, 2014) (collecting cases). In sum, of the sought-after $17,110.79 in electronic discovery costs, only the $1,320.16 for Bates labeling will be awarded. (See, Advanced Discovery Invoices (line items describing “Bates matching” or alternatively “Endorsing” followed by Bates numbers).) 3. Third-Party Discovery Finally, the Tollway Defendants seek to recover $1,390.28 in costs of obtaining records from third-party contractors necessary to conduct their depositions. their requests to those Defendants explain they limited contracts - 8 - for which Plaintiff claimed damages and that Defendants needed said records to defend against Plaintiff’s obtained damages for use claim. in the These case,” copies 28 amounts charged are not reasonable. U.S.C. were “necessarily § 1920(4), but the First, three of the pertinent invoices appear to charge for nothing at all. (Records Imaging Service Invoices at 6, 15-16, Grp. Ex. 4 to Tollway Defs.’ Bill of Costs, ECF No. 508-4.) There is no basis for the Court to judge the reasonableness of the $75.50 total from these invoices, so that sum will cumulative not $25.51 be in awarded. “miscellaneous the remaining invoices. $39.05 for explanation for as to will of such why an the is notarization award reflected the in Another invoice charged affidavit. costs Court disbursements” (Id. at 4.) notarization reimbursement Nor (Id. at 9.) But not permitted absent an was reasonably necessary. Huerta v. Vill. of Carol Stream, No. 09 C 1492, 2013 WL 427140, at *4 (N.D. Ill. Feb. 4, 2013) (collecting cases). has been provided here; the $39.05 is denied. No explanation After making these subtractions, we are left with a request of $1,250.22, apparently for the copying of 1,082 pages. Invoices, Grp. Ex. 4.) courts in this (See, Records Imaging Service This amounts to about $1.16 per page, but district have found photocopying costs between $0.10 and $0.20 to be reasonable. Hakim v. Accenture U.S. Pension Plan, (N.D. 901 F.Supp.2d 1045, 1057 - 9 - Ill. 2012) (collecting cases). Tollway makes no effort to clarify why these pages were so expensive. The invoices include various sums for “scanning records to internet,” but these line items go unexplained. Tollway Defendants incurred a greater cost here due If the to some reasonably necessary use it had of these documents in a format other than mere paper copy, they have failed to articulate it. The Court thus awards Defendants copying costs for these 1,082 pages at a $0.20/page rate, totaling $216.40. B. In total, IDOT Defendants’ Bill of Costs the IDOT Defendants seek costs of $28,730.25. Although these Defendants’ Motions could have benefitted from the inclusion of case law authorities, many of the costs they seek are nonetheless recoverable and reasonable. The Court grants in part and denies in part their bill of costs. 1. Court Reporting and Transcripts The IDOT Defendants seek $11,124.80 under this category of costs. IDOT calculated those costs based on the same prices per page used above by the Tollway Defendants (to wit: $0.90/page for transcript copies; $3.65/page for original transcripts; $0.50/page for exhibits). (See, Costs Spreadsheet, Ex. A to IDOT Defs.’ Am. Mot., ECF No. 507-1 (summarizing Magna Legal Services Invoices, Grp. Ex. B to same, ECF No. 507-2).) As stated above, these figures forth accord with the standards - 10 - set by the Judicial Conference of the United States. Midwest Fence complains that some of the deposition-related costs are duplicative, given that IDOT deposed Everett Bell (one of the owners of Midwest) over nine different days. Perhaps Mr. Bell was a veritable fount of knowledge and Defendants could not exhaust him; perhaps Mr. Bell was simply obdurate. Or, as Plaintiff now implies, perhaps Defendants took many days more with Mr. Bell than were required. Had Midwest provided some selections from those transcripts showing as much, or at a minimum articulated any specific reason for believing these depositions to be duplicative, the Court might have ruled differently. find that making Midwest’s an mere affirmative appropriate. conjecture showing shouldered that these the burden of costs are not Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir. 2005). constitute As it stands, however, the Court will not reasonable The $11,124.80 sought by the IDOT Defendants costs and will be taxed against the Plaintiff. 2. Subpoenas and Service of Process The IDOT Defendants seek $11,054.75 for subpoenas and service costs related to necessarily obtaining bid documents from prime contractors. The use of private process servers is an allowable recovery is and taxable as costs under 28 U.S.C. § 1920(1). Washington v. City of Springfield, No. 07-3075, 2011 WL 98941, at - 11 - *3 (C.D. Ill. Jan. 7, 2011) (citing Collins v. Gorman, 96 F.3d 1057, 1060 (7th Cir. 1996)). In order to award costs for the service of subpoenas, the Court need only determine whether the subpoenas were reasonable and known at the time of service. necessary Id. in light of the facts To demonstrate that subpoenas were unreasonable or unnecessary, a plaintiff must offer evidence showing that a defendant unreasonably believed that the document was necessary at the time it was sought. at *2. Huerta, 2013 WL 427140, Here, Midwest does not specify for which subpoenas it believes formal service was unnecessary, nor does it provide any evidence to that effect. Midwest thus fails to carry its burden to demonstrate that the IDOT Defendants are not entitled to these costs. See, City of Springfield, 2011 WL 98941, at *3. The $11,054.75 sum shall be taxed against Midwest. 3. Documents Copied for and Produced to Plaintiff The IDOT Defendants seek $4,153.70 for copying 41,537 pages at a rate of $0.10/page. Photocopying charges for discovery are recoverable and ten cents per page is a reasonable rate. 901 F.Supp.2d at 1057. Hakim, Midwest has not suggested any reason that these copying costs are unreasonable, so they are allowed. 4. Expert Fee Finally, the IDOT Defendants seek the $2,397.00 they paid Plaintiff’s expert, Johnathan Guryan, for his depositions. - 12 - The Defendants paid Mr. Guryan $510/hour for 4.7 hours. (See, Guryan Invoice, Ex. E to IDOT Defs.’ Am. Mot., ECF No. 507-5.) fees are recoverable under § 1920(3), allowable by 28 U.S.C. § 1821.” but only to “Witness the extent Rogers v. Baxter Int’l Inc., No. 04 C 6476, 2011 WL 941188, at *4 (N.D. Ill. Mar. 16, 2011) (citing Chi. Coll. of Osteopathic Med. v. George A. Fuller Co., 801 F.2d 908, 910 (7th Cir. 1986)) (citation omitted). provided by the IDOT Defendants, the From the materials Court cannot ascertain whether any part of the requested $2,397.00 is compensable under § 1821, which permits such costs as travel allowances. See, Rogers, 2011 WL 941188, at *4. Court not will allow these costs to be and subsistence Accordingly, the taxed against the Plaintiff. IV. CONCLUSION In sum, the Court grants in part and denies in part both bills of costs. For the Tollway Defendants, the Court taxes against Midwest $16,577.26 in costs, comprising: $15,040.70 in court reporting and transcript costs; $1,320.16 in electronic discovery costs; and $216.40 in third-party discovery costs. For the IDOT Defendants, the Court taxes against Midwest $26,333.25 in costs, comprising: $11,124.80 in court reporting and - 13 - transcript costs; $11,054.75 in subpoena and service of process costs; and $4,153.70 in document production costs. IT IS SO ORDERED. Harry D. Leinenweber, Judge United States District Court Dated: 3/29/2018 - 14 -
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