fraction of what she sought, the Court is not convinced by
Defendant’s claim that this - combined with Plaintiff’s
participation in other lawsuits - evidences bad faith or
justifies denying Plaintiff her costs.

Next, Defendant makes much of the fact that it offered
Plaintiff $10,000 to settle the case before trial, an offer that
Plaintiff rejected. However, Defendant acknowledged at oral
argument before this Court that the offer was not made pursuant
to Rule 68 of the Federal Rules of Civil Procedure and,
therefore, does not preclude an award of costs in this
matter.

Finally, Defendant does not challenge any of Plaintiff’s
requested costs as unreasonable or impermissible under the law.
A review of Plaintiff’s Bill of Costs indicate that the costs
are, in fact, both reasonable and recoverable.*? Therefore, the

Court grants Plaintiff $ 7,805.03 in costs.

3 plaintiff inexplicably requests only $322.65 in costs
associated with the deposition of Brenda Guendling, while the
attached bill indicates a charge of $362.40. The Court has
awarded the amount requested. In addition, while delivery fees
are ordinarily not recoverable, charges to deliver transcripts
are considered “'‘fees of the court reporter,’ which are
recoverable under Federal Rule of Civil Procedure (“Rule”)
54(d).” AA Sales & Assocs. Inc. v. JT&T, No. 98 C7954, 2001 WL
855867, at *2 (N.D. Ill. July 27, 2001) {quotations omitted).

5


not the only factor. More persuasive was the fact that the jury
ruled against Mr. Perlman on all of his federal claims, and “most
of the major skirmishes.” Id, The jury ruled in his favor only
on some of his more minor state law claims. Id.

In reaching its conclusion, the Seventh Circuit acknowledged
that, pursuant to 29 U.S.C. § 1332, a district court has the
discretion to deny a prevailing plaintiff costs, where the
plaintiff’s recovery is negligible. Id. The court explained,
however, that district courts are not compelled to do so, and are
free to award costs regardless of the amount of the recovery.
Indeed, many courts do choose to deny a plaintiff costs where a
minimal recovery evidences a plaintiff’s bad faith effort to
improperly proceed in federal court. See, Id.; see also Dr.
Franklin Perkins School v. Freeman, 741 F.2d 1503, 1525 (7 Cir.
1984) (noting that while § 1332(b) does not require a court to
find bad faith before denying costs, good faith is a factor the
district court should consider in deciding whether costs are
recoverable).

In the instant case, Plaintiff won on the only issue before
the Court - negligence. Indeed, Defendant conceded liability by
failing to oppose Plaintiff’s Motion for Summary Judgment on the
issue of liability. In addition, the jury saw fit to award
Plaintiff damages to cover her necessary medical expenses as well

as lost time. While it is true that Plaintiff recovered only a


CONCLUSION
For the reasons set forth above, Plaintiff's Motion for a
Bill of Costs is Granted, and Plaintiff is awarded $7805.03 in

costs. Defendant’s Motion for a Bill of Costs is Denied.

DATED: February 11, 2005 ENTERED:

Qo faye

Arlander Keys
United States Magistrate Judge



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

BRENDA GUENDLING,

Plaintiff,
No. 02 C 6282
vs.
Judge Arlander Keys
JACOB A. KING,

Defendant.

MEMORANDUM OPINION AND ORDER

Currently before the Court are Plaintiff's Motion for a Bill
of Costs, and Defendant’s Cross-Motion for a Bill of Costs.
Plaintiff sued Defendant for injuries stemming from a car
accident; the Court determined that Defendant was negligent and
asked a jury to determine the extent of Plaintiff’s damages.
Although Plaintiff sought upwards of $120,000, the jury awarded
her only $2,611.21. For the reasons that follow, the Court
grants Plaintiff’s Motion and denies Defendant’s Motion.

BACKGROUND FACTS

On September 15, 2000, Mr. King rear ended Ms. Guendiing’s
automobile, which was stopped at a stop light. Ms. Guendling
claimed that she suffered internal and external injuries, pain
and anguish, as well as damage to her automobile. Ms. Guendling
filed a federal lawsuit against Mr. King on September 4, 2002.
The Complaint plead jurisdiction pursuant to 28 U.S.C. § 1332(a),

noting that there was complete diversity of citizenship between


the parties and that the amount in controversy exceeded $75,000.

The case was initially assigned to Judge Rebecca R.
Pallmeyer, who granted Plaintiff’s Motion for Partial Summary
Judgment on the issue of liability, on June 10, 2003. The
parties then consented to proceed before this Court on July 3,
2003.

This Court presided over a jury trial on the issue of
damages, between October 26, 2004 and October 29, 2004. On
October 29, 2004, the jury returned an award for Ms. Guendling in
the amount of $2,611.21, to compensate Plaintiff for her
necessary medical care, treatment services rendered, and the
value of Ms. Guendling’s lost wages. The award was significantly
less than the $127,000 that Plaintiff had sought from the jury.

Following trial, Plaintiff filed a Motion for a Bill of
Costs. Defendant responded by filing a Cross Motion for a Bill
of Costs, and a Response to Plaintiff’s Motion.

DISCUSSION

Plaintiff contends that, pursuant to Rule 54(d) of the
Federal Rules of Civil Procedure, she is entitle to an order
awarding her $7.805.03 in costs, which she incurred in connection
with this litigation. Defendant argues that Plaintiff should be
denied her costs, and Defendant instead awarded his costs because
1)Plaintiff is not a prevailing party pursuant to FRCP 54(d),

because she recovered less than 3 1/2% of the amount she was


seeking; and 2) Plaintiff had no good faith basis to assert that
her claim satisfied the jurisdictional minimum of $75,000, citing
28 USC § 1332(b). Notably, Defendant does not argue that the
costs that Plaintiff seeks are unreasonable or impermissible
under 28 U.S.C. § 1920 (West 2005)*.

Rule 54(d) of the Federal Rules of Civil Procedure provides
that costs, other than attorneys fees “shall be allowed as of
course to the prevailing party.” Payne v. Milwaukee County, 288
F.3d 1021, 1027 (7° Cir. 2002) (quoting Fed. R. Civ. P. 54(d)).
See also Majeske v. City of Chicago, 218 F.3d 816, 824 (7 Cir.
2000) (there is a heavy presumption in favor of awarding costs to
the prevailing party).

Defendant cites to the Seventh Circuit’s decision in Perlman
v. Zell, 185 F.3d 850, 859 (7% Cir, 1999) in support of his
position that a plaintiff that wins less than 10% of his initial
demand is not a prevailing party. The Perlman court did indeed
factor Mr. Perlman’s relatively meager award into its

recommendation? that he was not a prevailing party. But this was

1 Federal law permits prevailing parties to recoup the
following costs: 1) fees of the clerk and marshal; 2) fees for
court reporters and transcripts; 3) fees for printing and
witnesses; 4) fees for copies of papers necessarily obtained for
use in the case; 5) docket fees; and 6) compensation ef court-
appointed experts and interpreters. 28 U.S.C. § 1920 (West
2002).

°Phe Seventh Circuit was merely advising the district judge,
noting that the prevailing party issue “deserved a fresh look”
Perlman, 185 F.3d at 859.