United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OPINION AND ORDER
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the court on the Defendants' “Bill
of Costs” and the Plaintiff's objections. (Docs.
154, 156). Because the court lacks the statutory authority to
tax the costs objected to by the Plaintiff, the court
SUSTAINS its objections.
court need not recount the protracted history of this
litigation. A summary will suffice.
January 8, 2014, the Plaintiff sued the Defendants, alleging
claims for tortious conversion of private property and
negligence. The Defendants moved to dismiss the complaint,
and the court granted the United States' motion but
denied CMC and Harsco's motion. The remaining Defendants
then moved for summary judgment, which the court denied.
Finally, the case proceeded to trial, where the Plaintiff
only pursued its conversion claim. At the close of the
Plaintiff's case, the court granted the Defendants'
motion for judgment as a matter of law on the remaining
the court entered judgment, it taxed costs against the
Plaintiff and for the Defendants. See (Doc. 153).
The Defendants filed a bill of costs for $26, 797.90.
See (Doc. 156). The Plaintiff filed objections to
$12, 772.34 of those costs, claiming that the costs were not
properly taxable under 28 U.S.C. § 1920(4). See
Rule of Civil Procedure 54(d)(1) permits a court to tax costs
other than attorney's fees for a prevailing party. A
court's ability to tax costs is limited to the power
Congress confers via statute. See Crawford Fitting Co. v.
J.T. Gibbons, Inc., 483 U.S. 437, 445 (1987). Title 28
U.S.C. § 1920(4) grants a judge or clerk of court the
power to tax costs “for exemplification and the costs
of making copies of any materials where the copies are
necessarily obtained for use in the case.”
“exemplification” is narrowly defined as
“an official transcript of a public record,
authenticated as a true copy for use as evidence.”
Arcadian Fertilizer, L.P. v. MPW Industrial Services,
Inc., 249 F.3d 1293, 1297 (11th Cir. 2001) (internal
precisely qualifies as a cost “of making copies of any
materials” is less clear. Prior to 2008, §1920(4)
permitted taxing costs for “copies of
papers.” The Eleventh Circuit drew a sharp
distinction: costs for copies of paper-like materials were
taxable and costs for copying materials that were not
analogous to paper were not. See Arcadian
Fertilizer, 249 F.3d at 1296B98 (“Until Congress
sees fit to amend the language of §1920 to include the
innovative technologies used in the production of
demonstrative exhibits, computer animations and videotape
exhibits are not taxable because there is no statutory
the Eleventh Circuit has not decided whether Arcadian
Fertilizer was abrogated by the 2008 amendment to the
statute changing the language from “papers” to
“any materials.” District courts considering the
question have reached opposite conclusions. Compare
Akanthos Capital v. Compucredit Holdings, 2
F.Supp.3d 1306, 1309-12 (N.D.Ga. 2014) (J. Batten) (finding
that the 2008 amendment did not render costs for graphics and
technology consulting services taxable) with Carroll v.
Tavern Corp., No. 1:08BcvB2514BTWT, 2011 WL 6337649
(N.D.Ga. Dec. 16, 2011) (J. Thrash) (taxing the cost of
production of a videotape).
specific guidance from the Eleventh Circuit, the court
considers the general interpretive principles of the statute.
The Supreme Court has stated that “[t]axable costs are
limited to relatively minor, incidental expenses . . .”
Taniguchi v. Kan.Pacific Saipan, 132 S.Ct. 1997,
2006 (2012) (“Our decision is in keeping with the
narrow scope of taxable costs.”).
these presumptions, the court is persuaded by Judge
Batten's reasoning in Akanthos Capital:
“Without persuasive guidance, and mindful of the
general preference for narrow construction of the statute,
the Court is unwilling to break new ground without new
direction from the Eleventh Circuit.” 2 F.Supp.3d at
1312. As Judge Batten notes, even if the particular holding
of Arcadian Fertilizer has been abrogated by the
2008 amendment, the case still evidences the Eleventh
Circuit's “general preference for narrow
construction of the section.” Id.
remains of Arcadian Fertilizer after the 2008
amendment? The amendment did not affect the Eleventh
Circuit's exposition of “exemplification.”
The amendments did not alter the language concerning
exemplification. Therefore, the Eleventh Circuit's narrow
definition of exemplification as “an official
transcript of a public record” ...