Midwest Fence Corp. v. U.S. Dep't of Transp.
| Decision Date | 29 March 2018 |
| Docket Number | Case No. 10 C 5627 |
| Parties | MIDWEST FENCE CORPORATION, Plaintiff, v. THE UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Defendants Illinois Department of Transportation ("IDOT") and Illinois State Toll Highway Authority ("Tollway") filed Motions to recover bills of cost. (ECF Nos. 506-09, 518.) For the reasons stated herein, the Court grants in part and denies in part both Motions.
Plaintiff Midwest Fence is a specialty contractor that typically bids on guardrail and fencing construction projects as a subcontractor. Defendants administer state programs that offer advantages in highway construction contracting to Disadvantage Business Enterprises ("DBEs"). DBEs are small businesses owned and managed by individuals who are both socially and economically disadvantaged and who have historically faced discrimination in the construction industry. Midwest Fence — which does not qualify as a DBE — sued Defendants on the theory that the DBE programs violate Midwest's Fourteenth Amendment right to equal protection under the law. The Court granted summary judgment for Defendants, finding that the DBE programs serve a compelling governmental interest in remedying a history of discrimination in highway construction contracting. Midwest Fence Corp. v. United States Dep't of Transp., 84 F.Supp.3d 705, 740 (N.D. Ill. 2015), aff'd, 840 F.3d 932 (7th Cir. 2016). The Seventh Circuit affirmed.
After the Seventh Circuit issued its ruling, the IDOT and Tollway Defendants renewed their respective Motions to recover on bills of costs. (ECF Nos. 506-09, 518.) However, Midwest Fence then petitioned the Supreme Court for certiorari, and this Court stayed the bills of costs while that petition pended. The Supreme Court has since denied certiorari, so this Court turns at last to the Defendants' respective bills of costs.
Federal Rule of Civil Procedure 54(d)(1) provides that a prevailing party may obtain reimbursement for certain litigation costs at the conclusion of a lawsuit. The Rule establishes a "presumption that the prevailing party will recover costs, and the losing party bears the burden of an affirmative showing that taxed costs are not appropriate." Beamon v. Marshall & Ilsley TrustCo., 411 F.3d 854, 864 (7th Cir. 2005) (citing M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1409 (7th Cir. 1991)). In evaluating an application for costs, the Court must first determine whether the claimed expenses are recoverable and, second, whether the costs requested are reasonable. Majeske v. City of Chi., 218 F.3d 816, 824 (7th Cir. 2000) (citation omitted). The Court has "wide latitude" in fixing a reasonable award. Deimer v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 345 (7th Cir. 1995).
As an initial matter, Midwest Fence raises several generic fairness objections that it contends cut against the Defendants' ability to recover costs in this case. The Court dispatches those objections now before considering the specifics of Defendants' sought-after costs. First, Midwest Fence says that when the Defendants argued against certiorari at the Supreme Court, they reversed course and argued a position contrary to the one they argued at trial. From this, Midwest Fence concludes that the Supreme Court's subsequent denial of certiorari signaled that Court's approval of Defendants' newly reversed position — which, according to Midwest Fence, mirrored its own position at trial — and so Midwest should no longer be declared the loser and thus susceptible to taxation for costs. No analysis of Defendants'litigation positions (whether consistent or otherwise) is necessary here. The Supreme Court Maryland v. Baltimore Radio Show, 338 U.S. 912, 919 (1950). A denial of certiorari does not sprinkle holy water on any position argued below, and Midwest Fence is wrong to suggest otherwise.
Next, Midwest Fence argues Defendants' discovery costs should have been far less than they were because Defendants were always required to be in compliance with the Equal Protection Clause and so, Midwest concludes, Defendants were required to have evidence of that compliance on hand before this suit ever got started. Midwest cites no authority for this position and the Court would be surprised if it could. Certainly Defendants' obligation to respect the Constitution predated Midwest's Complaint; but why Midwest thinks that obligation also obviated the need for discovery once a suit arose is an enigma.
Most broadly, Midwest Fence complains that though it filed and lost its suit, Midwest has not been found guilty of any wrongdoing. But in our legal system, costs are presumptively awarded absent the losing party's showing that costs are notappropriate. Beamon, 411 F.3d at 864. There is no threshold question of the losing party's malfeasance. Clearly, the Court must reject all of Midwest's generic objections to the taxation of costs. Yet Midwest also levies some more specific arguments against Defendants' sought-after costs; these the Court considers in turn.
In total, the Tollway Defendants seek costs of $33,544.77. The Court grants in part and denies in part their bill of costs.
The Tollway Defendants seek $15,065.85 in costs under this category as follows:
Description Pages Cost Copies ofDepositionTranscripts 4,681 pages (at$0.90/page) $4,212.90 Original DepositionTranscripts 2,014 pages (at$3.65/page) $7,351.10 Half-Day CourtReporter AttendanceFees 7 separateattendance fees notto exceed $110/each $540.35 Full-Day CourtReporter AttendanceFees 11 separateattendance fees notto exceed $220/each $1,850.35 Exhibits toTranscripts 2,172 pages (at$0.50/each) $1,086.00 TOTAL $15,040.70
First, the Court notes that the Tollway Defendants incorrectly calculate this category's total (based on the above figures) as $15,065.85. The Court corrects that sum to $15,040.70 as reflected in the table above.
Copying costs are taxable but must be reasonable and "necessarily obtained for use in the case." See, 28 U.S.C. § 1920(4). Here, the Tollway Defendants represent that they referred to and cited these transcripts in their briefs. This goes beyond the requirement that, at the time taken, the deposition appeared to be reasonably necessary to the case. Soler v. McHenry, 771 F.Supp. 252, 255 (N.D. Ill. 1991) (citing Illinois v. Sangamo Constr. Co., 657 F.2d 855, 867 (7th Cir. 1981), aff'd sub nom. Soler v. Waite, 989 F.2d 251 (7th Cir. 1993). The Tollway Defendants have also appropriately "identif[ied] the nature of each document copied, the number of copies of each document prepared, the copying cost per page, and the total copying cost." Druckzentrum Harry Jung GmbH & Co. KG v. Motorola, Inc., No. 09-CV-7231, 2013 WL 147014, at *7 (N.D. Ill. Jan. 11, 2013) (citation and internal quotation marks omitted). The requested transcript costs per page also conform, as Local Rule 54.1(b) dictates they must, to the standards set forth by the Judicial Conference of the United States. Judicial Conference ofthe United States, Federal Court Reporting Program, available at http://www.uscourts.gov/services-forms/federal-court-reporting-program
. Accordingly, these reporting and transcript costs shall be taxed against the Plaintiff.
The Tollway Defendants seek $17,110.79 in costs for electronic production of documents. Midwest objects, echoing the Court's earlier observation that OCR expenses — which account for $3,251.10 of this category's total — are "typically not recoverable as prevailing-party costs under 28 U.S.C. § 1920(4), because they are incurred purely to make a document searchable (as opposed to readable)." (May 11, 2017 Order at 3, ECF No. 517 (citing Intercontinental Great Brands LLC v. Kellogg N. Am. Co., No. 13 C 321, 2016 WL 316865, at *6 (N.D. Ill. Jan. 26, 2016).) This $3,251.10 will not be awarded. Midwest also echoes the Court's earlier-stated objection to Defendant's pursuit of $8,008.83 for "scanning - glass work/heavy litigation services." .) Despite the Court's warning that this "impregnable cost[] description, without more, furnishes no basis for adjudicating reasonableness," the Tollway Defendants have provided no further elucidation of this term. (May 11, 2017 Order at 3.) That $8,008.83 will not be awarded.
The balance of the expenses in this category comprises Bates labeling, imaging, CD/DVD creation, and courier service. Costs for Bates labeling have been found to be taxable. DSM Desotech, Inc. v. 3D Sys. Corp., No. 08 CV 1531, 2013 WL 3168730, at *2 (N.D. Ill. June 20, 2013) (collecting cases). Expenses for imaging and the creation of electronic versions of documents are taxable when the parties have agreed to produce documents electronically, but Defendants have not produced evidence of any such agreement here. See, e.g., Specht v. Google Inc., No. 09 C 2572, 2011 WL 2565666, at *3 (N.D. Ill. June 27, 2011). Courier service costs are typically considered overhead and not allowable as costs. Chi. Bd. Options Exch., Inc. v. Int'l Sec. Exch., LLC, No. 07 CV 623, 2014 WL 125937, at *3 (N.D. Ill. Jan. 14, 2014) (collecting cases). In sum, of the sought-after $17,110.79 in electronic discovery costs, only the $1,320.16 for Bates labeling will be awarded. (See, Advanced Discovery Invoices (line items...
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