United States District Court, S.D. Alabama, Southern Division
CALLIE V. S. GRANADE, District Judge.
This matter is before the Court on Defendants' motion to re-tax costs (Doc. 94) and Plaintiff's amended response thereto (Doc. 96). The clerk taxed costs in the amount of $434.96, for witness fees and printing costs. (Doc. 93). Defendants move to re-tax costs to include the costs for depositions in the amount of $9, 260.05. (Doc. 94). For the reasons explained below, the Court finds that Defendants can recover the costs of deposing all of the witnesses for which they seek reimbursement, but that Defendants are not entitled to recoup the costs of duplicate forms of depositions for those witnesses. Accordingly, Defendants' motion to re-tax costs will be granted in part and denied in part.
"In the exercise of sound discretion, trial courts are accorded great latitude in ascertaining taxable costs." Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519, 1526 (11th Cir. 1985) (citing United States v. Kolesar, 313 F.2d 835 (5th Cir. 1963)). However, in exercising its discretion to tax costs, absent explicit statutory authorization, federal courts are limited to those costs specifically enumerated in 28 U.S.C. § 1920. Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445 (1987). The word "costs" is not synonymous with "expense." Eagle Insurance Co. v. Johnson, 982 F.Supp. 1456, 1458 (M.D. Ala. 1997). "[E]xpense includes all the expenditures actually made by a litigant in connection with the lawsuit." Id . (citations omitted). "Whereas the costs that the district court may award under Rule 54(d)(1) are listed in 28 U.S.C.A. § 1920, a district court may not award other costs or exceed the amounts provided in § 1920 without explicit authorization in another statutory provision." Id . (citations omitted). Thus, the costs will almost always be less than the total expenses associated with the litigation. Id . (citations omitted).
The court's power to tax costs is grounded in part in Rule 54(d)(1) of the Federal Rules of Civil Procedure, which states: "Unless a federal statute, these rules, or a court order provides otherwise, costs - other than attorneys' fees - should be allowed to the prevailing party." Fed.R.Civ.P. 54(d)(1). Rule 54(d) gives rise to a presumption that costs will be awarded, and the party opposing the award must overcome this presumption. Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639 (11th Cir. 1991); see also Caribbean I Owners' Ass'n, Inc. v. Great Am. Ins. Co. of New York, 2009 WL 2150903, at *3 (S.D. Ala. July 13, 2009) ("The burden falls on the losing party to show that specific deposition costs or a particular court reporter's fee was not necessary for use in the case or that the deposition was not related to an issue present in the case at the time of the deposition.") (citations omitted); Monelus v. Tocodrian, Inc., 609 F.Supp.2d 1328, 1333 (S.D. Fla. 2009) ("When challenging whether costs are taxable, the losing party bears the burden of demonstrating that a cost is not taxable[.]").
Section 1920 of Title 28 authorizes a judge or clerk of court to tax six items as costs:
(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 under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
28 U.S.C. § 1920. A court may not award costs that exceed those permitted by § 1920. See Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1575 (11th Cir. 1988).
Defendants seek costs for 13 depositions it claims were necessarily obtained for use in the case. Section 1920(2) authorizes the award of costs for deposition transcripts. 28 U.S.C. § 1920(2); see United States v. Kolesar, 313 F.2d 835, 837-38 (5th Cir. 1963) ("Though 1920(2) does not specifically mention a deposition, ... depositions are included by implication in the phrase stenographic transcript.'"). However, "[w]here the deposition costs were merely incurred for convenience, to aid in thorough preparation, or for purposes of investigation only, the costs are not recoverable." E.E.O.C. v. W & O, Inc., 213 F.3d 600, 620 (11th Cir. 2000) (quoting Goodwall Const. Co. v. Beers Const. Co., 824 F.Supp. 1044, 1066 (N.D.Ga.1992), aff'd, 991 F.2d 751 (Fed. Cir. 1993)). Whether the costs for a deposition are taxable depends on "whether the deposition was wholly or partially necessarily obtained for use in the case.'" Id. at 621 (quoting Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 337 (5th Cir. Unit B 1981)). "[D]eposition costs are taxable even if a prevailing party's use of a deposition is minimal or not critical to that party's ultimate success." Ferguson v. Bombardier Serv. Corp., 2007 WL 601921, *3 (M.D. Fla. Feb. 21, 2007).
Plaintiff objects to some of the deposition costs claimed by Defendants. Specifically, plaintiff objects to the inclusion of any costs for the depositions of Al Pirez, Richard Schiehl, Joachim Jaeger, and Wade Stanford. Plaintiff asserts that Pirez, Schiehl and Jaeger were experts retained by the Defendants and contends that Plaintiff would not have called these witnesses. Plaintiff reports that it also was not likely to have called Stanford. Defendants state that they included the costs of these depositions because Plaintiff ...