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Gadsden Industrial Park, LLC v. CMC, Inc.

United States District Court, N.D. Alabama, Middle Division

July 13, 2017

GADSDEN INDUSTRIAL PARK, LLC, Plaintiff,
v.
CMC, INC. and HARSCO CORPORATION, Defendants.

          MEMORANDUM OPINION AND ORDER

          KARON OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         The court need not recount the protracted history of this litigation. A summary will suffice.

         On 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 conversion claim.

         When 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 (Doc. 158).

         II. LEGAL STANDARD

         Federal 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.”

         An “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 quotes omitted).

         What 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 authority.”).

         However, 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).

         Without 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.”).

         Given 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.

         What 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” ...


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