Opinion
CAUSE NO. 1:00-CV-460
August 15, 2002
MEMORANDUM OF DECISION AND ORDER
I. INTRODUCTION
Following the grant of summary judgment in favor of thedefendant SPX Corporation ("SPX") on July 1, 2002, and the entry of judgment on July 2, 2002, SPX filed a "Bill of Costs" on July 16, 2002, supported by the declaration of attorney Mark Kittaka. The Clerk issued a "Notice of Costs to be Taxed," and on July 26, the Plaintiff, Steve McDowell ("Plaintiff") filed an objection. SPX filed a reply brief on August 9, 2002. For the reasons hereinafter provided, the costs claimed by SPX will be allowed in part and disallowed in part.
II. FACTUAL AND PROCEDURAL BACKGROUND
Summary judgment was granted to SPX on the Plaintiff's claim that SPX interfered with his substantive Family Medical Leave Act rights when it terminated him for excessive absenteeism. See 29 U.S.C. § 2601-2654. Now SPX seeks $1,704.30 for court reporter fees, viz., the first deposition of the Plaintiff ($749.40), the deposition of Joel Conrad ($80.40), the deposition of Dr. Subhash Reddy ($505.30), the deposition of Dr. Donald Marshall ($165.40), and the second deposition of the Plaintiff ($203.80). SPX also contends it had to pay witness fees to Dr. Subhash Reddy ($40.00) and Dr. Donald Marshall ($40.00). Additionally, it seeks $1,852.20 in exemplification and copying fees. Finally, SPX contends it incurred $160.00 in telecopy charges. Thus, SPX contends it is entitled to a cost judgment against the Plaintiff in the amount of $3,796.50.
On its AO Form 133, SPX originally sought $2,754.34 in court reporter fees; however, in its reply, SPX indicated that this figure mistakenly included Dr. Subhash Reddy's expert witness fees of $1,050.00, accordingly SPX maintains that the appropriate amount is $1,704.30.
On its AO Form 133, SPX originally sought $1,854.20 for exemplification and copying costs, but in its reply, it noted that this figure was $2.00 more than actual costs, and it only seeks $1,852.20.
On its AO Form 133, SPX indicated it was entitled to $4,848.50. However, due to the clerical errors discussed supra ns. 1 2, it now claims to only be entitled to a total of 3,796.50.
In response, the Plaintiff contends that he should not have to pay fees for the court reporter, fees for exemplification and copying, and for telecopy charges because those costs are unclear, unsubstantiated and contain items for which there can be no recovery. The Plaintiff also objects to paying any of these costs because of his financial condition.
III. DISCUSSION
Federal Rule of Civil Procedure 54(d)(1) provides for the taxing of costs as follows:
Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs . . . .
At the outset, we understand the Plaintiff to be saying two things: because SPX has not specifically identified each item, its costs should at least be reduced, and failing that, because the Plaintiff has been off work with an injury and otherwise lacks the financial wherewithal to pay, we should exercise our discretion and direct each party to bear their own costs. We will address the Plaintiff's second contention before turning to which costs are recoverable.
The Plaintiff contends that notwithstanding the admonition in Rule 54(d)(1) that "costs . . . shall be allowed as of course to the prevailing party," we should exercise some discretion here because he cannot pay any costs. Fed.R.Civ.P. 54(d)(1) (emphasis added). However, there is a strong presumption in favor of awarding costs to the prevailing party and it is necessary for the losing party to overcome that presumption. Park v. City of Chicago, ___ F.3d ___, 2002 WL 1608221, *8 (7th Cir. July 22, 2002); Contreras v. City of Chicago, 119 F.3d 1286, 1295 (7th Cir. 1997); McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994). Accordingly, it is up to the Plaintiff to provide us with some evidence of his inability to pay costs sufficient to overcome the presumption to which SPX is entitled. Corder v. Lucent Technologies, Inc., 162 F.3d 924, 929 (7th Cir. 1998). However, on this score we have nothing more than the Plaintiff's simple assertion that he been off work for three weeks with a knee injury and this has depleted his savings. (Pl. Decl. ¶¶ 3-4.) While his savings may have been depleted by his injury, clearly the Plaintiff retains the ability to pay the costs, at least in the future, since he has returned to work and apparently he and his spouse's joint income exceeds $500 a week. (Pl. Decl. ¶¶ 3, 5.) See, e.g., Marinich v. Peoples Gas Light and Coke Co., 2002 WL 1759796, *1 (N.D.Ill. July 30, 2002) (losing party must demonstrate future inability to pay costs); Coleman v. ANR-Advance Transp. Co., 2001 WL 477208, *1 (N.D.Ill. May 4, 2001). Moreover, his affidavit does not disclose whether he owns any property or other assets, and we also note that he did not seek to proceed in this case in forma pauperis. Accordingly, it appears that the Plaintiff is able to pay, at least in the future, the costs his litigation forced SPX to incur.
Indeed, even if we were to find the Plaintiff to be indigent, that would not automatically waive his obligation to pay costs. Cox v. Preferred Technical Group, Inc., 110 F. Supp.2d 786, 791 (N.D.Ind. 2000) ( citing McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994). Thus, since Rules 54(d) creates a presumption that the prevailing party will recover its costs, M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1409 (7th Cir. 1991), and since the Plaintiff has not made any showing of indigence, we have no basis to disturb the usual outcome.
Having disposed of the Plaintiff's overarching argument against the imposition of costs, we now turn to address whether the items are recoverable and whether the amounts SPX seeks for each are reasonable. See Majeske v. City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000); Moore v. Univ. of Notre Dame, 22 F. Supp.2d 896, 913 (N.D.Ind. 1998).
To be recoverable, the various cost items sought by SPX must fit within what is statutorily specified under 28 U.S.C. § 1920; for example, the Plaintiff does not contest that SPX, as a general proposition, is entitled to deposition transcript fees, witness fees, and the cost of copying papers "necessarily" used in the case. Indeed, given the strong presumption favoring the award of costs to the prevailing party under Rule 54(d), the Plaintiff must affirmatively demonstrate why SPX is not entitled to such costs. M.T. Bonk Co., 945 F.2d at 1409.
The Court will therefore address each cost category, keeping in mind the Seventh Circuit's mandate that we must "provide at least a modicum of explanation when entering an award of costs." Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 455 (7th Cir. 1998).
First, the Plaintiff offers no objection to SPX's $80.00 witness fees for Dr. Reddy and Dr. Marshall. Accordingly, SPX is entitled to $80.00 in witness fees.
SPX also seeks to recover the court reporter's costs for five depositions, items clearly compensable under § 1920(2) to the extent they were "necessarily obtained for use in the case." 28 U.S.C. § 1920(2); Cengr, 135 F.3d at 455; Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 945 (7th Cir. 1997). Understandably, the Plaintiff does not argue that these depositions were not necessary for use in the case; rather, he only complains that these deposition charges are not substantiated by any court reporter's bill. However, SPX has attached to its reply the court reporter's bills for all five of these depositions (i.e., for the Plaintiff's first and second depositions, Dr. Reddy's deposition, Dr. Marshall's deposition, and Joel Conrad's deposition) ( see SPX's Reply, Ex. B), thus SPX is entitled to recover costs for them in the amount of $1,704.30.
SPX contends that it also had to pay $1,852.20 in copying charges and costs for copying the Plaintiff's medical records. The Plaintiff objects that SPX's $0.15 per copied page cost is excessive. However, this Court has held that $0.15 per page is a reasonable rate. Cox, 110 F. Supp.2d 786 (N.D.Ind. 2000). Accordingly, SPX is entitled to recover $1,852.20.
Finally, SPX argues it is entitled to $160.00 in telecopier or facsimile transmission charges. However, since the Court may only tax those costs authorized by § 1920, see Crawford Fitting v. J.T. Gibons, Inc., 482 U.S. 437, 441-445 (1987); Barber v. Ruth, 7 F.3d 636, 644 (7th Cir. 1993), and since telecopier or facsimile transmission costs are not authorized by § 1920, SPX is not entitled to recover them. See cf., NLFC, Inc. v. Devcom Mid-America, Inc., 916 F. Supp. 751, 765 (N.D.Ill. 1996) (denying facsimile transmission costs); O'Bryhim v. Reliance Standard Life Ins. Co., 997 F. Supp. 728, 737-38 (E.D. Vir. 1999), aff'd 188 F.3d 502 (4th Cir. 1999) (denying facsimile transmission costs); Garshman Co. v. General Elec. Co., 993 F. Supp. 25, 29 (D.Mass. 1998), aff'd 176 F.3d 1 (1st Cir. 1999) (denying telecopier costs); Ortega v. IBP, Inc., 883 F. Supp. 558, 562-63 (D.Kan. 1995) (denying fax transmission costs); Tincher v. Walmart, 1996 WL 663879, *4 (S.D.Ind. May 31, 1996). Therefore, SPX's costs will be disallowed in the amount of $160.00.
SPX cites to us a bankruptcy case for the proposition that it can recover its telecopier or facsimile transmission costs. See In re Nephi Rubber Prods., 146 B.R. 782 (Bankr.N.D.Ind. 1992). However, because the recovery of costs in a bankruptcy case is controlled by 11 U.S.C. § 330(a)(2), not 28 U.S.C. § 1920, that decision is inapposite.
IV. CONCLUSION
Based on the foregoing, the Bill of Costs submitted by SPX is allowed in the amount of $3,636.50 and otherwise disallowed. The Clerk is directed to enter a cost judgment in favor of SPX and against the Plaintiff in the amount of $3,636.50.
SPX's bill of costs is disallowed as to $160.00 in telecopy charges, $2.00 in copy charges, see supra at n. 2, and $1,050.00 in court reporter fees, see supra n. 1.