Bonds v. Fizer

• Decision Date: 24 September 2014
• Docket Number: No. 09 C 2726,09 C 2726
• Citation: 69 F.Supp.3d 799
• Parties: Christopher Bonds, Plaintiff, v. Detective Edwin Fizer and the City of Chicago, Defendants.
• Court: U.S. District Court — Northern District of Illinois

69 F.Supp.3d 799

Christopher Bonds, Plaintiff

v.Detective Edwin Fizer and the City of Chicago, Defendants.

No. 09 C 2726

United States District Court, N.D. Illinois, Eastern Division.

Signed September 24, 2014

Kurt Henry Feuer, Loevy & Loevy, Chicago, IL, for Plaintiff.

Kathryn M. Doi, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Chief Judge Rubén Castillo, United States District Court

On May 20, 2010, this Court granted a motion for summary judgment in favor of Detective Edwin Fizer and the City of Chicago (collectively “Defendants”), and against Plaintiff Christopher Bonds on Plaintiff's claims of false arrest, malicious prosecution, and indemnification. (R. 43, Min. Entry; R. 44, Mem. Op. & Order.) Presently before the Court is Defendants' bill of costs pursuant to Federal Rule of Civil Procedure 54(d). (R. 48, Defs.' Bill of Costs.) For the reasons stated below, the Court awards Defendants $6,252.11 in costs.

BACKGROUND

The Court assumes familiarity with the facts of this case as outlined in its May 20, 2010 Memorandum Opinion and Order granting summary judgment. See Bonds v. Fizer, 713 F.Supp.2d 752, 756–59 (N.D.Ill.2010). The facts are repeated here only as they pertain to this bill of costs. On June 28, 2008, Plaintiff was arrested by Detective Fizer for an alleged assault on Plaintiff's wife's elderly aunt who resided with him and his family at the time. (R. 1, Compl.¶¶ 20–27.) The victim had been diagnosed with Alzheimer's and senile dementia earlier that year, (id. ¶ 8), and Plaintiff contends that she fabricated a story that Plaintiff had “roughed her up” and was trying to kill her, (id. ¶ 17). At the time of the incident, Plaintiff was an officer with the National Guard and an instructor at Chicago State University. (Id. ¶ 30.) Plaintiff alleges that due to his occupational standing, several television stations ran stories on his arrest and showed a photo of Plaintiff on the nightly news. (Id. ) The Chicago Tribune also ran an article detailing the allegations made in the arrest. (Id. )

Plaintiff asserts that the media attention damaged his reputation in his community and with the National Guard. (Id. ¶¶ 30–32.) He also contends that his arrest led to the loss of a promotion to major in the National Guard and $32,000.00 in potential income; to advance to the rank of major, he had to resign his commission in the National Guard and apply as a captain with the United States Army Reserve. (Id. ¶ 32.) Additionally, Plaintiff alleges that he incurred physical suffering, mental distress, monetary damages, and humiliation as a result of his arrest. (Id. ¶ 37.) On October 6, 2008, the victim of Plaintiff's alleged assault died and the charges against Plaintiff were dropped. (Id. ¶ 31.)

On May 4, 2009, Plaintiff filed a three-count complaint against Defendants. (Id. ) In Count I, Plaintiff brought a 42 U.S.C. § 1983 claim for false arrest, detention, and imprisonment. (Id. ¶¶ 35–37). In Count II, Plaintiff brought a state law claim for malicious prosecution. (Id. ¶¶ 38–41). In Count III, Plaintiff brought a state law claim for indemnification against the City of Chicago. (Id. ¶¶ 42–44). On May 20, 2010, this Court granted a motion for summary judgment in favor of Defendants on Counts I and III, and dismissed Count II without prejudice for want of jurisdiction. (R. 44, Mem. Op. & Order.) Plaintiff appealed this Court's ruling on summary judgment, and on July 21, 2010, the Seventh Circuit dismissed his appeal for failure to timely pay the required docketing fee. (R. 52, Notice of Appeal; R. 59, Final Order Mandate.)

On June 18, 2010, Defendants filed a bill of costs pursuant to Rule 54(d), seeking $7,047.00 in total costs. (R. 48, Bill of Costs.) Specifically, Defendants request $190.95 for exemplification and copies of papers; $307.00 for subpoena fees; $5,908.70 for deposition transcript costs; and $640.35 in other costs. (Id. at 1, 3.) Plaintiff responded to Defendants' bill of costs on September 14, 2010, (R. 64, Pl.'s Resp.), and Defendants replied on September 30, 2010, (R. 65, Defs.' Reply). Defendants' bill of costs is presently before the Court.

LEGAL STANDARD

Pursuant to Rule 54(d), “costs—other than attorney's fees—should be allowed to the prevailing party.” Fed.R.Civ.P. 54(d)(1). A district court may not tax costs under Rule 54(d), however, “unless a federal statute authorizes an award of those costs.” Republic Tobacco Co. v. N. Atl. Trading Co., Inc., 481 F.3d 442, 447 (7th Cir.2007) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441–43, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987) ). The list of recoverable costs authorized under 28 U.S.C. § 1920 include:

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

(5) Docket fees ...; [and]

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services ...

28 U.S.C. § 1920(1) -(6).

Even if authorized by statute, however, “a cost must be both reasonable and necessary to the litigation for a prevailing party to recover it.” Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir.2008) (citing Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 454 (7th Cir.1998) ; McIlveen v. Stone Container Corp., 910 F.2d 1581, 1582–83 (7th Cir.1990) ). In short, the determination of whether to tax costs against the losing party requires two inquiries: “(1) whether the cost imposed on the losing party is recoverable and (2) if so, whether the amount assessed for that item was reasonable.” Majeske v. City of Chi., 218 F.3d 816, 824 (7th Cir.2000). Although there is a strong presumption that the prevailing party will recover costs, Park v. City of Chi., 297 F.3d 606, 617 (7th Cir.2002), the “party seeking an award of costs carries the burden of showing that the requested costs were necessarily incurred and reasonable.” Trs. of the Chi. Plastering Inst. Pension Trust v. Cork Plastering Co., 570 F.3d 890, 906 (7th Cir.2009). Once the prevailing party demonstrates that particular costs should be allowed, the losing party then bears the burden to affirmatively show that the taxed costs are not appropriate. Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir.2005). Generally, only the losing party's inability to pay or misconduct by the prevailing party worthy of a penalty will suffice to justify denying costs. Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 945 (7th Cir.1997) (citing Congrega tion of the Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219, 222 (7th Cir.1988) ); see also Rivera v. City of Chi., 469 F.3d 631, 635 (7th Cir.2006) (declining to abandon the indigence exception to Rule 54(d) ). Ultimately, the decision of whether to award costs is within the Court's discretion. M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1409 (7th Cir.1991).

ANALYSIS

Plaintiff disputes Defendants' calculations outlined in their bill of costs and argues that costs should not be awarded because: (1) the costs sought by Defendants are not recoverable; (2) Defendants request costs in excess of what they actually paid; (3) Defendants ultimately dropped all criminal charges against Plaintiff and thus it would be inequitable for him to pay costs; (4) Defendants were not the prevailing party on all counts, as the Court declined to exercise jurisdiction over Plaintiff's pending state court claim; and (5) Plaintiff is indigent. (R. 64, Pl.'s Resp. at 2–7.) The Court addresses each of these arguments in turn.

I. Whether the “other costs” sought by Defendants are recoverable

Plaintiff argues that Defendants seek costs that are not recoverable under federal law. (R. 64, Pl.'s Resp. at 2.) Plaintiff contends that such unrecoverable costs include travel reimbursement for Defendants' attorney ($17.00), costs for a subpoena of the alleged victim's health records ($216.35), and costs for the production of a DVD ($407.00). (Id. ) These costs are listed under “other costs” on Defendants' bill of costs and total $640.35. (R. 48, Defs.' Bill of Costs at 1, 14.)

Defendants initially sought fees related to travel expenses incurred by their attorney totaling $17.00. (Id. at 14, 21–22.) Defendants now concede, however, that travel expenses incurred by counsel in traveling to and from witness depositions are not costs awarded under 28 U.S.C. § 1920, and therefore, voluntarily withdraw $17.00 in transportation fees from their bill of costs. (R. 65, Defs.' Reply at 2.)

Defendants seek $216.35 for costs for a subpoena of the alleged victim's health records. (R. 48, Defs.' Bill of Costs at 14, 17.) Specifically, Defendants served a subpoena on Little Company of Mary Hospital for the victim's medical records and now seek the costs associated with receiving copies of those records. (Id. at 17; R. 65, Defs.' Reply at 2–3.) Defendants contend that the costs for these records were a “necessary expense” and should be awarded. (R. 65, Defs.' Reply at 3.)

The prevailing party may recover costs for copies of materials that were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). This includes costs for copies related to discovery and copies of pleadings, motions, and memoranda submitted to the court. McIlveen, 910 F.2d at 1584 ; Swan Lake Holdings, LLC v. Yamaha Golf–Car Co., No. 3:09–CV–228, 2011 WL 1869389, at *3 (N.D.Ind. May 13, 2011) ; Nilssen v. Osram Slyvania, Inc., No. 01 C 3585, 2007 WL 257711, at *6 (N.D.Ill. Jan. 23, 2007). Specifically at issue here, “[a]warding the costs of obtaining copies of medical records necessary for a case is ‘clearly allowable’ in the Seventh Circuit.” Gillman v. Crown Equip. Corp., No. 95 C 1914, 1996 WL 556706, at *5 (N.D.Ill. Sept. 26, 1996) (citing ...