Phillips v. Bartoo

161 F.R.D. 352, 1995 WL 326435
CourtDistrict Court, N.D. Illinois
DecidedMay 22, 1995
DocketNo. 94 C 163
StatusPublished
Cited by3 cases

This text of 161 F.R.D. 352 (Phillips v. Bartoo) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phillips v. Bartoo, 161 F.R.D. 352, 1995 WL 326435 (N.D. Ill. 1995).

Opinion

OPINION AND ORDER

NORGLE, District Judge:

Before the court is the motion of Defendant Danny Dee Bartoo for costs. For the following reasons, the motion is granted in part. Plaintiff shall pay Defendant “taxable costs” in the amount of eighty dollars.

Facts

Plaintiff James Phillips (“Mr. Phillips”) sustained injuries to the cervical region of his' back as a result of a collision between his automobile and the automobile owned and driven by Defendant Danny Dee Bartoo (“Bartoo”). Mr. Phillips and his wife, Candice Phillips (“Mrs. Phillips”) brought this diversity action against Bartoo alleging that Bartoo negligently operated his automobile, causing the automobile to collide with Mr. Phillips’ vehicle. Mr. and Mrs. Phillips sought compensation for medical expenses, pain and suffering, and loss of consortium.

On November 9, 1994, Bartoo filed with this court an offer of judgment upon Plaintiffs, pursuant to Rule 68 of the Federal [354]*354Rules of Civil Procedure, in the amount of $5,000.00. This offer was not accepted within ten days. Therefore, by the terms of the offer, the offer was withdrawn effective November 19, 1994. A jury trial ensued.

On March 21, 1995, a, jury returned a verdict in favor of Mr. and Mrs. Phillips against Bartoo in the amount of $833.25. Judgment was subsequently entered by this court. On April 4, 1995, Bartoo filed this motion for costs he incurred after November 9, 1994, the date he filed his offer of judgment. In his motion, Bartoo requests $750 for the preparation, time, and testimony of Dr. Marshall Matz; $322.75 for trial testimony of Dr. Cornelius Arnold; $301.28 for his lost income; $700 for his travel to and from Chicago for trial; and $340.17 for hotel accommodations and food expenses incurred during the trial. These items totalled $2,414.20.

Discussion

Rule 68 of the Federal Rules of Civil Procedure provides:

[A] party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued.... An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the of-feree must pay the costs incurred after the making of the offer.”

Fed.R.Civ.P. 68. “[T]he costs which are subject to the cost-shifting provisions of Rule 68 are those enumerated in 28 U.S.C. § 1920, unless the substantive law applicable to the particular cause of action expands the general § 1920 definition.” Parkes v. Hall, 906 F.2d 658, 660 (11th Cir.1990). The substantive law expanding the § 1920 provisions can be found in either federal or state law. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 259 n. 31, 95 S.Ct. 1612, 1622 n. 31, 44 L.Ed.2d 141 (1975).1 However, absent substantive law authorizing the expansion of § 1920 provisions, Rule 68 “costs” are limited to the definition in § 1920, including court reporter fees, witness fees, and photocopy fees. 28 U.S.C. § 1920(2)—(4). Zackaroff v. Koch Transfer Co., 862 F.2d 1263, 1265 (6th Cir.1988); Denny v. Westfield State College, 880 F.2d 1465, 1471 (1st Cir. 1989); Leroy v. City of Houston, 831 F.2d 576, 584 (5th Cir.1987). As such, without a specific underlying statute authorizing any other types of “costs” not listed in § 1920, such as attorney’s fees, postage, Federal Express fees, and messenger service fees, only the six types of costs listed in § 1920 are “taxable costs” included in Rule 68. Wahl v. Carrier Manufacturing Co., 511 F.2d 209, 217 (7th Cir.1975).

In the case sub judice, Bartoo fails to point to any underlying statute authorizing an expansion of § 1920. The court finds no state or federal statute or rule of law authorizing attorney’s fees or any other fees outside the scope of § 1920 that applies to the instant automobile negligence claim. As such, the court limits Rule 68 “taxable costs” to those specifically delineated in 28 U.S.C. § 1920.

Bartoo apparently only requests witness fees. Bartoo requests fees incurred to attain his expert medical witnesses, Drs. Matz and Arnold, as well as the travel expense fees expended by himself. However, with regard to Bartoo’s own travel expenses, it is well-settled that a real party in interest may not collect witness fees. Barber v. Ruth, 7 F.3d 636, 645 (7th Cir.1993); Hodge v. Seiler, 558 F.2d 284, 287 (5th Cir.1977). Although the Seventh Circuit has been “unable to discern a bright line [between a nominal and real party] which can be applied in all eases,” Id. at 646, the court need not make that inquiry. The case at hand does not involve “ ‘fuzzy’ circumstance^].” Id. The record makes clear that Bartoo is the sole Defendant and a real party to this action. Therefore, the court denies his request [355]*355for travel expenses, including hotel and food costs, totalling $1,040.17.2

Bartoo also requests recoupment of salary he could have earned had he worked the days he attended the trial. Yet, § 1920 makes no mention of “lost income” when defining “taxable costs.” The Supreme Court, specifically held that “the discretion given to district judges to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute.” Farmer v. Arabian American Oil Co., 379 U.S. 227, 235, 85 S.Ct. 411, 416, 13 L.Ed.2d 248 (1964). Thus, keeping in mind the above principle, the court also denies Bartoo’s request for the sum of $301.28 for income lost due to his absence from work. In doing so, the court reminds Bartoo that a jury of his peers determined that his negligent operation of his automobile proximately caused injury to Mr. and Mrs. Phillips.

Bartoo also attempts to recover $750 for preparation, time and testimony of Dr. Marshall Matz, and $322.75 for trial testimony of [his] treating physician, Dr.

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Bluebook (online)
161 F.R.D. 352, 1995 WL 326435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-bartoo-ilnd-1995.