Recovering Litigation Costs in Federal Court (Northern District of Illinois)

Federal court litigants in Illinois should be versed in 28 U.S.C. §1920, FRCP 54 and Northern District Local Rule 54.1 – both of which govern recoverable costs and the procedures for recovering those costs in Federal court.  Broadly, the prevailing party has 30 days from date of judgment to file a Bill of Costs.  Failing that, all of his costs – except for “clerk” costs (28 U.S.C. § 1920) – are waived. LR 54.1(a).

FRCP 54 creates a strong presumption that the prevailing party may recover reasonable and necessary litigation costs from the losing party.  Huerta v. Village of Carol Stream, 2013 WL 427140 (N.D.Ill. 2013).  28 U.S.C. §1920 provides that a winning party can recover: (1) clerk and marshal fees [filing and service fees, e.g.]; (2) fees for transcripts necessarily obtained for use in a case; (3) printing and witness fees; (4) exemplification/certification costs for materials necessarily used in a case; (5) docket fees; and (6) court-appointed experts and interpreters’ fees.  Id.  The prevailing party has the burden of showing that the requested costs are necessary and reasonable and once that burden is met, the losing party must show that the costs are not appropriate.  Beamon v. Marshall & Isley Trust Co., 411 F.3d 854 (7th Cir. 2005). 

A prevailing Federal court party’s private process server fees are also recoverable, so long as they don’t exceed the applicable marshall’s fees ($55/hour pursuant to 28 C.F.R. § 0.0114(a)(3); see Huerta, 2013 WL 427140, *3.  As for deposition costs, whether transcript costs are allowed depends on whether it was reasonably and necessarily “related to an issue that was present in the case at the time the deposition was taken.”  Independence Tube Corp. v. Copperweld Corp., 543 F.Supp. 706, 718 (N.D.Ill. 1982).  If so, the victor gets the cost of the original transcript, one copy and an additional copy – so long as the additional copy is tendered to the court.  LR 54.1(b).  The prevailing party can recover up to $3.65 per deposition page.  Huerta, at *3; citing Maximum Transcript Rates,

 However, shipping and handling costs are “ordinary business expenses” and not recoverable.  Bogan v. City of Chi., 2010 U.S.Dist. LEXIS 64187 (N.D.Ill. 2010).

The take-away:  If litigating in Federal court, the recent Huerta case provides a lucid and detailed treatment of allowable and dis-allowable litigation costs.  If presenting or opposing a Bill of Costs, this case and the applicable rules it references should prove useful in supporting your arguments.  Also, effective, May 23, 2013, LR 54.1(b) was amended to provide that court reporter appearance fees may be awarded but those rates shall not exceed the rates published on the Court website.  


Huerta opinion:

Local Rule 54.1

Local Rule 54 (amendment May 23, 2013)

FRCP 54:

28 U.S.C. §1920:

When Private Facebook Posts Come Back to Haunt You

To paraphrase that post-“Black Album” Metallica song (and a pretty tired proverb at that) – be careful what you wish for ’cause you just might get it.  I came across this gem recently courtesy of Eric Meyer’s (of Dilworth Paxson, LLP) informative and humorous employment blog:

The National Labor Relations Board (NLRB) recently issued an Advice Memorandum (see link below) recommending dismissal of an employee’s claim that her employer violated the National Labor Relations Act’s (NLRA) protected “concerted activity” sections when the employer fired the employee for making disparaging comments about the employer on Facebook.

The employee, who worked for Skinsmart – a dermatology clinic – was on a private Facebook “group message” with several former and current Skinsmar employees.  During the course of the exchange, the employee said, among other things, that a supervisor should “back the freak off”, the employer is “full of shit” and (the killer) “FIRE ME…..Make my day.”  The next day, one of the employees who participated in the Facebook exchange, showed the comments to the employer (with friends like these….).  The employer wasn’t amused and summarily fired the Facebooking (now former) employee.  (Somewhere Monsieur Eastwood is smiling.)  The employee, apparently having a change of heart, then lodged an unfair labor practice charge with the NLRB.

In recommending dismissal of the employee’s claim, the NLRB found that the employee’s inflammatory comments were akin to “griping” and were not protected group activity.  The NLRA specifically protects employees’ rights to organize and engage in concerted activity – so long as the activity involves shared concerns about working conditions or where the activity takes place in the context of preparing for group action or bringing group complaints to management’s attention.  Meyers Industries, 281 NLRB 882 (1986), NLRA §§ 7, 8(a)(1).  Here, the NLRB ruled that the employee’s request that her employer “fire her” and “make my day” was nothing more than unprotected individual griping and simply “reflected [the employee’s] personal contempt for her [employer].”  See Advice Memorandum, p. 3.

The take-away: First – be careful what you post on Facebook: you never know who is watching or who may “share” your impulsive (or not) posts; Second – if you are going to participate in a group message with current and/or former employees, your comments will only be protected if they truly involve working conditions or truly group complaints to be expressed to management; and Third – if you’re going to trash your employer, do it off-line.


Mechanics Lien Attorneys’ Fees Only Binds Owner, Not Lender – IL Court


Action Plumbing v. Bendowski, 402 Ill.App.3d 681 (2nd Dist. 2010), discusses Section 17(b) of the Mechanics Lien Act (the “Act”), 770 ILCS 60/17(b) – the section that allows a lien claimant to recover its attorneys’ fees from an owner in some circumstances.

The plaintiff plumbing contractor recorded mechanics liens against 16 residential properties and sued to foreclose the liens.

The contractor named the original owner of the parcels as well as the subsequent purchasers as defendants.

After a bench trial, the court entered a foreclosure judgment and awarded plaintiff contractor its full lien amount, interest plus attorneys’ fees against all defendants, including the subsequent purchasers (now, the current owners).

Reversing the fee award, the Second District held that the contractor can only recover allows attorneys’ fees against the “owner who contracted to have the improvements made”…”but not any other party“.  770 ILCS 60/17(b).

Since the subsequent purchaser defendants were not owners at the time plaintiff entered into his contracts, they couldn’t be responsible for plaintiff’s attorneys’ fees.

The Court also looked to Section 17’s legislative history which contains clear congressional statements that mechanics’ lien attorneys’ fees can only be awarded against owners – not subsequent purchasers. 

In ThyssenKrupp Elevator Corp. v. Community Investment Corp., 2012 IL App (2d) 101172-U, the Second District also disallowed lien claimant attorneys’ fees against a non-owner.

There, the issue was whether the plaintiff elevator could assert lien priority (including its attorneys’ fees) over a prior mortgage lender where that lender was defaulted for failing to appear during trial. 

The trial court vacated the default on lender’s motion and held that the contractor only took priority over the lender for the base lien amount plus interest and costs but NOT for its fees – which were substantial after several years of litigation.

Affirming, the Second District cited Section 17’s clear language that a contractor’s lien fees can only be taxed against an owner.  Since the lender wasn’t an owner by definition, the contractor’s attorneys’ fees didn’t bind the lender.  ¶¶ 26-30.

The Court also rejected the contractor’s argument that fee-shifting language in the underlying contract (between plaintiff and the owner) gave plaintiff’s fees primacy over the lender’s mortgage.

The reason: the lender was not a party to the underlying contract and so the plaintiff’s fees couldn’t prime the prior mortgage.  ¶¶ 31-32.    

EpilogueActon Plumbing and ThyssenKrupp make it clear that – at least in the Second District – a contractor’s mechanics’ lien attorneys’ fees can only be assessed against an owner – not a subsequent purchaser, mortgage lender, or other lien claimant. 

Even if a prior mortgage lender defaults and the owner-general contractor agreement has fee-shifting language (in addition to Section 17’s attorneys’ fee provision), the contractor’s attorneys’ fees are still only be taxable to owner – no one else.