Sullivan v. Cheshier

991 F. Supp. 999, 1998 U.S. Dist. LEXIS 467, 1998 WL 25727
CourtDistrict Court, N.D. Illinois
DecidedJanuary 8, 1998
DocketNo. 93 C 47
StatusPublished
Cited by2 cases

This text of 991 F. Supp. 999 (Sullivan v. Cheshier) 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
Sullivan v. Cheshier, 991 F. Supp. 999, 1998 U.S. Dist. LEXIS 467, 1998 WL 25727 (N.D. Ill. 1998).

Opinion

MEMORANDUM OPINION AND ORDER

BUCKLO, District Judge.

On April 2, 1997, after a jury trial, judgment was entered in favor of the defendant, William Cheshier. Dr. Cheshier filed his original Bill of Costs on April 30,1997, within the required 30-day period. On November 13, 1997, with permission of the court, Dr. Cheshier filed an Amended Bill of Costs seeking litigation costs of $29,430.49. Plaintiffs, John Sullivan and Susan Sullivan, object to the costs and ask the court to deny all costs or in the alternative, to reduce the [1001]*1001costs. For the following reasons, I award Dr. Cheshier $7,967.41.

“[C]osts other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs____” Fed.R.Civ.P. 54(d)(1). In awarding costs, “the court must determine that the expenses are allowable [under statutory authority] ... and that the amounts are reasonable and necessary.” Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 642 (7th Cir.1991).

Denial of All Costs

A. Late Filing

A bill of costs must be filed within thirty days of the entry of judgment or costs will be deemed waived. N.D.I11. Local R. 45(A). “Before any bill of costs is taxed, the party ... shall attach thereto an affidavit” stating that the costs are correct and were necessarily incurred in the case. 28 U.S.C. § 1924.

Plaintiffs argue that the court should deny all costs because Dr. Cheshier did not file a bill of costs and affidavit within the required 30-day period. “While it may be preferable, for a party to file supporting documentation and authority along with (the bill of costs), 28 U.S.C. § 1924 does not appear to require it.” Piraino v. International Orientation Resource, 1997 WL 222948, *2 (N.D.Ill.1997) (Coar, J.). An affidavit is only required under Section 1924 “before any bill of costs is taxed.” Id. Dr. Cheshier filed his original Bill of Costs within the 30-day period. He subsequently received permission to file an Amended Bill of Costs and cured any defect by attaching an affidavit. Thus Dr. Cheshier’s bill of costs was timely.

B. Misconduct

“[T]he prevailing party is prima fa-cie entitled to costs and it is incumbent on the losing party to overcome the presumption.” McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir.) (quoting Popeil Bros., Inc. v. Schick Elec., Inc., 516 F.2d 772, 775 (7th Cir.1975)), cert. denied, 513 U.S. 889, 115 S.Ct. 233, 130 L.Ed.2d 157(1994). The losing party must affirmatively show that the prevailing party is not entitled to costs. Congregation of the Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219, 222 (7th Cir.1988). Generally, only the non-prevailing party’s inability to pay or misconduct1 by the prevailing party worthy of a penalty justify denying costs. Id.

Plaintiffs claim that costs should be denied for misconduct because Dr. Cheshier exercised bad faith in preparing his original and Amended Bill of Costs. Plaintiffs do not cite any law to support this position. Courts in this district, however, have not denied costs because of any alleged misconduct in the preparation of a bill of costs. See, e.g., Somat Corp. v. Somat Corp., 1993 WL 75155, *6 (N.D.Ill.1993) (Plunkett, J.). Therefore, this argument fails.

Alternatively, plaintiffs argue that Dr. Cheshier’s numerous motions to extend discovery, to extend the date for the pretrial order, and to continue the trial date constitute misconduct. They claim that the motions evince a deliberate effort to delay and increase the expense of litigation. Although the motions for extensions appear numerous, they do not rise to the level of misconduct.

Reduction of Costs

Dr. Cheshier seeks $8,297.54 in deposition transcript charges and $21,132.95 in costs related to expert witnesses. Dr. Cheshier is not entitled to all the costs that he lists. The court 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 ease;
(5) Docket fees under section 1923 of this title;
[1002]*1002(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

28 U.S.C. § 1920.

1. Deposition Transcript Costs

Fees of a court reporter who makes the stenographic transcript of a deposition are recoverable if the deposition was necessarily obtained for used in the case. SK Hand Tool Corp. v. Dresser Indus., Inc., 852 F.2d 936, 943-44 (7th Cir.1988), cert. denied, 492 U.S. 918, 109 S.Ct. 3241, 106 L.Ed.2d 589 (1989). Plaintiffs do not object to deposition charges related to John Sullivan ($931.80), Kathleen Blake Sullivan Nelson ($444.46), or Joseph Bolton Sullivan ($438.20). These costs are taxable under Section 1920(2) and are granted.

Plaintiffs object to the cost of Susan Sullivan’s deposition ($2,419.50). They claim that there was no justification for a 489 page deposition. It is not abnormal to have a lengthy deposition of a party, and so I grant Dr. Cheshier this cost.

Plaintiffs object to transcript charges for Dr. Cheshier’s deposition. They claim that he did not present a receipt for the $1,218.35 transcript charge for his deposition on September 7-8, 1995. Plaintiffs took Dr. Cheshier’s deposition, ahd since they do not claim that the deposition did not occur, I will grant Dr. Cheshier this cost. However, I will reduce his deposition transcript charges on March 15 and May 10,1995 from $1,218.35 to $1,024.15 since the receipts only support the latter amount. In total, Dr. Cheshier is entitled to $2,242.50 for his deposition transcripts.

Plaintiffs also object to two charges relating to Michael Yapko, Ph.D. ($1,216.75)2 and Richard Kenneth Baer, Ph.D. ($194.20).

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Cite This Page — Counsel Stack

Bluebook (online)
991 F. Supp. 999, 1998 U.S. Dist. LEXIS 467, 1998 WL 25727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-cheshier-ilnd-1998.