Brown v. City of Chi.

• Decision Date: 30 April 2019
• Docket Number: 16 C 4229
• Parties: EDITH BROWN, Plaintiff, v. CITY OF CHICAGO, BRIAN MURPHY, JENNIFER UZUBELL, and BRIAN KANE, Defendants.
• Court: U.S. District Court — Northern District of Illinois

EDITH BROWN, Plaintiff, v. CITY OF CHICAGO, BRIAN MURPHY,JENNIFER UZUBELL, and BRIAN KANE, Defendants.

16 C 4229

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

April 30, 2019

Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

Edith Brown brought this suit against the City of Chicago and Chicago police officers Brian Murphy, Jennifer Uzubell, and Brian Kane, alleging 42 U.S.C. § 1983 and state law claims arising from an August 2015 encounter with the officers at her home. Doc. 1. After a one-week trial, the jury found for Defendants and the court entered judgment. Docs. 136, 139. Defendants now seek costs under Civil Rule 54(d)(1) and 28 U.S.C. § 1920, with the officers' bill seeking $35,359.16, Doc. 140, and the City's bill seeking $3,817.33, Doc. 142. (The officers' revised bill of costs, attached to their reply brief, seeks $35,229.66. Doc. 161-1.) Brown's objections to the bills, Doc. 158, are sustained in part and overruled in part, resulting in a cost award to the officers of $8,248.25 and to the City of $3,796.93.

Rule 54(d)(1) "provides that, '[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney's fees—should be allowed to the prevailing party.'" Baker v. Lindgren, 856 F.3d 498, 502 (7th Cir. 2017) (alteration in original) (quoting Fed. R. Civ. P. 54(d)(1)). The Rule "creates a presumption in favor of awarding costs to the prevailing party." Ibid.; see also Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir. 2005) ("There is a presumption that the prevailing party will recover costs, and the losingparty bears the burden of an affirmative showing that taxed costs are not appropriate."). A court awarding costs must ask first "whether the cost imposed on the losing party is recoverable" under § 1920 and, "if so, whether the amount assessed for that item was reasonable." Majeske v. City of Chicago, 218 F.3d 816, 824 (7th Cir. 2000). Recoverable costs include: (1) "[f]ees of the clerk and marshal"; (2) fees for "transcripts necessarily obtained for use in the case"; (3) "[f]ees and disbursements for printing and witnesses"; (4) "[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case"; (5) "[d]ocket fees"; and (6) "[c]ompensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services." 28 U.S.C. § 1920. "Although a district court has discretion when awarding costs, the discretion is narrowly confined because of the strong presumption created by Rule 54(d)(1) that the prevailing party will recover costs." Contreras v. City of Chicago, 119 F.3d 1286, 1295 (7th Cir. 1997) (citation and internal quotation marks omitted).

I. The Officers' Bill of Costs

As to the officers' bill, Brown objects to expert witness fees, certain copying costs, the costs of messenger services and copies of medical records, the cost of an undated court transcript, and the level of detail on the deposition invoices. Doc. 158 at 1-3.

A. Witness and Expert Fees

In addition to $200 in statutory attendance fees for five lay witnesses, see 28 U.S.C. § 1821(b), the officers seek expert fees of $3,200 for the time billed by Dr. Percy May (Brown's treating physician) for his deposition and $19,500 for the time billed by Dr. Sherwin Ho (Defendants' medical expert) for his deposition and trial testimony. Doc. 140 at 2, 5; Doc. 161 at 5-6. Brown argues that the expert fees are not recoverable under § 1920. Doc. 158 at 1-2.

Settled precedent holds that expert witness fees are not recoverable as "costs" under § 1920, but that a $40 daily attendance fee, travel costs, and an overnight subsistence allowance are recoverable under § 1821. See Neal v. Honeywell Inc., 191 F.3d 827, 834 (7th Cir. 1999) ("[T]he fees of expert witnesses ... are not 'costs' [under § 1920], and thus are not compensable as costs, unless some other statute provides for reimbursement.") (emphasis omitted); Chi. Coll. of Osteopathic Med. v. George A. Fuller Co., 801 F.2d 908, 909 (7th Cir. 1986) ("[A]dditional amounts paid as compensation, or fees, to expert witnesses cannot be allowed or taxed as costs in the Federal courts.") (internal quotation marks omitted); Illinois v. Sangamo Constr. Co., 657 F.2d 855, 865 (7th Cir. 1981) ("We conclude that ... expenses incurred by private parties to retain expert witnesses are recoverable as costs under § 1920 only to the extent specified in § 1821."); Adams v. Carlson, 521 F.2d 168, 172 (7th Cir. 1975) ("Where, as here, the witnesses involved are expert witnesses, the prevailing party can recover only the statutory amounts prescribed in § 1821 and not additional expert witness fees."). The officers respond, Doc. 161 at 5, by citing cases recognizing that prevailing parties may recover expert fees under rules and statutes other than Rule 54(d)(1) and § 1920. See Nance v. City of Elgin, 2011 WL 1750885, at *2 (N.D. Ill. May 3, 2011) (42 U.S.C. § 1988); Warfield v. City of Chicago, 733 F. Supp. 2d 950, 955 (N.D. Ill. 2010) (same); Waters v. City of Chicago, 526 F. Supp. 2d 899, 901 (N.D. Ill. 2007) (Rule 26(b)(4)); Profile Prods., LLC v. Soil Mgmt. Techs., Inc., 155 F. Supp. 2d 880, 886 (N.D. Ill. 2001) (same). However, because the officers' brief relies solely on Rule 54(d)(1) and § 1920 to recover May's and Ho's expert witness fees, Doc. 161 at 2, 5-6, the officers forfeit any alternative basis for recovering those fees. See NRC Corp. v. Amoco Oil Co., 205 F.3d 1007, 1014 (7th Cir. 2000) (holding that a party forfeited an alternative ground for recovering attorney fees where it "did not raise" that ground in the district court); see also G & S Holdings, LLC v.Cont'l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012) ("We have repeatedly held that a party waives an argument by failing to make it before the district court.").

Accordingly, the officers may not recover $22,700 for May's and Ho's expert fees as costs under Rule 54(d)(1) and § 1920. The officers do not seek a $40 statutory attendance fee under § 1821(b) for May and Ho, Doc. 140 at 2, so the court limits the officers' recovery of witness fees to $200 for the five lay witnesses they identify.

B. Copying Costs

The officers seek to recover $3,484.46 paid to a firm called Blue Star for "copying[ and] printing services for trial." Doc. 140 at 6. "Only fees for copies 'necessarily obtained for use in the case' are recoverable" under § 1920(4). Montanez v. Simon, 755 F.3d 547, 558 (7th Cir. 2014) (quoting 28 U.S.C. § 1920(4)); see also Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 429 (7th Cir. 2000) ("Exemplification that was not reasonably necessary to the presentation of one's case to the court does not qualify for reimbursement under section 1920(4)."); McIlveen v. Stone Container Corp., 910 F.2d 1581, 1584 (7th Cir. 1990) ("The phrase 'for use in the case' refers to materials actually prepared for use in presenting evidence to the court.") (alteration omitted) (quoting 28 U.S.C. § 1920(4)). Brown argues that "$3,484.46 for copying and printing is neither reasonable or necessary" because the officers "introduced fewer than 10 short exhibits into evidence at trial." Doc. 158 at 3.

As an initial matter, the Blue Star invoices submitted by the officers reflect only $1,876.12 in costs. Compare Doc. 140 at 6 (claiming that the officers paid $3,484.46 to Blue Star for "copying, printing services"), with Doc. 140-1 at 60 (invoice for $178.36), 66 ($84.76), 68-69 ($11.88 and $19.80), 74 ($1,516.22), 88 ($65.10). Accordingly, the officers may not recover more than $1,876.12 for Blue Star's copying and printing. See Montanez, 755 F.3d at559 (holding that the district court need not "make up for the lawyers' lack of documentation" in a bill of costs); Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 643 (7th Cir. 1991) (noting that the party seeking costs "[i]s required to provide the best breakdown obtainable from retained records" of costs); see also Harper v. City of Chi. Heights, 223 F.3d 593, 605 (7th Cir. 2000) ("[W]hen a fee petition is vague or inadequately documented, a district court may ... strike the problematic entries ... .").

Brown's objection focuses on a $1,516.22 Blue Star invoice for copying trial exhibits, broken down as follows: $1,222.72 ($414.64 + $414.16 + $393.92) for three sets of trial exhibits—one for the court, one for Brown, and one for the officers—totaling 15,284 pages; $220 for twenty binders; and $73.50 for index tabs. Doc. 140-1 at 74. The court's set of trial exhibits, which consists of 5,183 pages, were set placed in eight four-inch binders. Ibid. Exhibits 25 and 28 consisted of 2,984 pages of medical records and 627 nonconsecutively numbered pages of grainy, black and white MRI scans. Those 3,611 pages represent 69.67% of the total pages in the court's set, which the court assumes matches the set the officers provided to Brown and the set they retained for themselves.

The officers assert that their trial exhibits "were prepared for impeachment purposes, as demonstrative exhibits, and/or for trial arguments." Doc. 161 at 4. But the officers fail to explain how Exhibits 25 and 28—an undifferentiated mass of 3,611 pages of medical records and MRI scans—realistically could have been used at trial for impeachment or any other purpose. See CBOE, Inc. v. Int'l Sec. Exch., LLC, 2014 WL 125937, at *7 (N.D. Ill. Jan. 14, 2014) ("The party seeking recovery [of copying costs] must also come forward with evidence showing the nature of the documents copied, including how they were used or intended to be used in the case."); Andrews v. Suzuki Motor Co., 161 F.R.D. 383, 386 (N.D. Ill. 1995) (notingthat the court will not award "costs associated with extravagant, useless, or obviously unnecessary copies"). This is fatal to the officers' attempt to recover the costs of reproducing those two...