Se–Kure Controls, Inc. v. Vanguard Prods. Grp., Inc.

• Decision Date: 05 July 2012
• Docket Number: No. 02 C 3767.,02 C 3767.
• Citation: 873 F.Supp.2d 939
• Parties: SE–KURE CONTROLS, INC., Plaintiff, v. VANGUARD PRODUCTS GROUP, INC., and Telefonix, Inc., Defendants.
• Court: U.S. District Court — Northern District of Illinois

873 F.Supp.2d 939

SE–KURE CONTROLS, INC., Plaintiff,

v.VANGUARD PRODUCTS GROUP, INC., and Telefonix, Inc., Defendants.

No. 02 C 3767.

United States District Court,

N.D. Illinois,

Eastern Division.

July 5, 2012.

Richard Daniel Harris, Cameron Matthew Nelson, Herbert H. Finn, James K. Cleland, Jeffrey G. Mote, Greenberg Traurig, LLP, Chicago, IL, for Plaintiff.

Lee F. Grossman, Mark M. Grossman, Grossman Law Offices, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

On December 3, 2010, after multiple proceedings before now-retired Judge Anderson, this Court entered judgment in favor of Vanguard Products Group, Inc., and Telefonix, Inc., (“Defendants”) and against Se–Kure Controls, Inc., (“Plaintiff”)on Plaintiff's claims and Defendants' counterclaims in a patent infringement action and dismissed the case with prejudice. (R. 481, Entry J.) This judgment was affirmed by the Federal Circuit on November 21, 2011. Se–Kure Controls, Inc. v. Vanguard Prods. Grp., Inc., 438 Fed.Appx. 902, 903 (Fed.Cir.2011). Presently before the Court is Defendants' petition for costs. (R. 484, Defs.' Am. Pet. for Costs.) Defendants seek $38,693.77 ¹ in costs and expert witness fees pursuant to Federal Rules of Civil Procedure 54(d) and 26(b)(4)(E). ( Id.) Plaintiff filed objections to Defendants' costs and included a request for its own expert witness fees pursuant to Rule 26(b)(4)(E). (R. 488, Pl.'s Objs.) For the reasons set forth below, the Court awards costs and expert witness fees to Defendants, but reduces Defendants' requested costs by $6,220.95. The Court also grants Plaintiff's request for expert witness fees pursuant to Rule 26(b)(4)(E) and awards Plaintiff $14,042.49 in expert witness fees, to be credited against Defendants' total costs. Defendants are therefore awarded a total of $18,430.33.

ANALYSIS

I. Federal Rule of Civil Procedure 54(d)

Under the Federal Rules of Civil Procedure, “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. 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., 514 F.3d 699, 702 (7th Cir.2008). 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); Telular Corp. v. Mentor Graphics Corp., No. 01–431, 2006 WL 1722375, at *1 (N.D.Ill. June 16, 2006) (“The prevailing party bears the burden of demonstrating the amount of its recoverable costs because the prevailing party knows, for example, how much it paid for copying and for what purpose the copies were used.”). Once the prevailing party demonstrates that the particular items of costs should be allowed, the losing party then bears the burden of affirmatively showing that the taxed costs are not appropriate. Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir.2005). Ultimately, the decision whether to award costs rests within the discretion of the Court. M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1409 (7th Cir.1991).

On December 3, 2010, the Court entered judgment in favor of Defendants after finding United States Patent No. Re 37,590, which Defendants were accused of infringing, invalid. (R. 480, Min. Entry.) Therefore, Defendants are the prevailing party and are entitled to recover all allowable costs pursuant to Rule 54(d).

II. Untimeliness

At the outset, Plaintiff argues that Defendants' amended petition for costs should be dismissed in its entirety as untimely. (R. 488, Pl.'s Objs. at 1–3.) Under Local Rule 54.1(a), a prevailing party must file a bill of costs with the Court “[w]ithin 30 days of the entry of a judgment allowing costs.” N.D. Ill. L.R. 54.1(a). Judgment was entered in favor of Defendants on December 3, 2010. (R. 480, Min. Entry.) Defendants filed their original petition for costs eleven days thereafter, on December 14, 2010, seeking a total of $39,892.57 in costs. (R. 482, Defs.' Pet. for Costs at 1; R. 480, Min. Entry.) Plaintiff filed objections to the original petition for costs, (R. 483, Pl.'s Initial Objs.), and shortly thereafter, on December 31, 2010, Defendants filed the amended petition for costs presently before the Court. (R. 484, Defs.' Am. Pet. for Costs at 1.) Plaintiff concedes that this amended petition is “technically within the 30–day period allowed by the Local Rules,” but nevertheless argues that it should be considered untimely because the Defendants have added entirely new costs—namely, expert witness fees—that were not included in the original petition for costs. (R. 488, Pl.'s Objs. at 2.)

The Court disagrees. Plaintiff has not provided, and the Court has not found, any case law to support Plaintiff's theory that an amended petition for costs should be dismissed as untimely because it includes new costs not found in the prevailing party's original petition for costs, even though the amended petition was filed within 30 days of entry of judgment. In general, it is within the discretion of the Court to allow revisions to a petition for costs, timely or otherwise. See O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 989 (7th Cir.2001) (district court did not abuse its discretion in granting prevailing party's amended bill of costs that was filed after the deadline); Finchum v. Ford Motor Co., 57 F.3d 526, 533–34 (7th Cir.1995) (district court did not abuse its discretion by allowing prevailing party “to revise their request downward and add supporting material”); see also M.T. Bonk Co., 945 F.2d at 1409–10 (district court did not err in allowing prevailing party to supplement its bill of costs). Here, there is no issue of timeliness: both Defendants' original petition and amended petition for costs were filed within the 30–day time limit imposed by Local Rule 54.1(a). The fact that Defendants added entirely new costs to their amended petition is of no consequence since Plaintiff has had the opportunityto properly challenge the new costs on the merits (and in a timely fashion), and the Court can now, in turn, fully address the merits of each side's arguments. Rules regarding procedural time limits exist to prevent one party from getting blind-sided and left unable to properly address issues raised by the opposing side. No such unfair prejudice to Plaintiff exists here. Thus, Defendants' amended petition for costs, which was filed within the 30–day time limit imposed by Local Rule 54.1(a), is timely. See Shanklin Corp. v. Am. Packaging Mach., Inc., No. 95–1617, 2006 WL 2054382, at *1 n. 1 (N.D.Ill. July 18, 2006) (treating original petition for costs as moot in light of amended petition for costs submitted within the 30–day time period).

III. Court Transcripts

Defendants request $782.04 in costs for court transcripts pursuant to 28 U.S.C. § 1920(2). (R. 484, Defs.' Am. Pet. for Costs at 4.) A prevailing party may recover costs for court transcripts “necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). “[T]ranscripts need not be absolutely indispensable in order to provide the basis of an award of costs; it is enough if they are ‘reasonably necessary.’ ” Shanklin Corp., 2006 WL 2054382, at *2 (quoting Barber v. Ruth, 7 F.3d 636, 645 (7th Cir.1993)). According to Defendants, they “only ordered the court transcripts when it was necessary to refer to in writing briefs for the Court.” (R. 484, Defs.' Am. Pet. for Costs at 4.) In support, Defendants have included four invoices for costs associated with transcripts of court hearings for the following dates: August 6, 2002, September 30, 2005, October 3, 2007, February 27, 2008, and April 3, 2008. (R. 484–1, Defs.' Ex. C at 2–5.) As an initial matter, Plaintiff correctly objects that these invoices only add up to $368.04. (R. 488, Pl.'s Objs. at 4–5.) Additionally, under Local Rule 54.1(b), “the costs of the transcript ... shall not exceed the regular copy rate as established by the Judicial Conference of the United States and in effect at the time the transcript or deposition was filed[.]” N.D. Ill. L.R. 54.1(b). The Court reviews each invoice in turn.

Defendants requested first copies of a daily transcript of the August 6, 2002 hearing transcript at a rate of $1.10 per page, for a total of $22.00. (R. 484–1, Defs.' Ex. C at 2.) In 2002, the rate established by the Judicial Conference for an original ordinary transcript was $3.00 and $0.75 for a copy, whereas the rate for an original...