United States District Court, S.D. Alabama, Southern Division
COMPUTER PROGRAM AND SYSTEMS INC., et al., Plaintiffs/Counterdefendants,
v.
WAZU HOLDINGS, LTD., et al., Defendants/Counterclaimants.
ORDER
KRISTI
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.
This
matter is before the Court on CPSI's Bill of Costs (Doc.
329), Evident's objection (Doc. 330) and CPSI's reply
(Doc. 331), Costs Taxed (Doc. 333), CPSI's Motion to
Retax (Doc. 340), Evident's response (Doc. 341
(amended)), and CPSI's reply/supplement (Docs. 344, 347).
I.
Background
This is
a Lanham Act trademark case. Following an April 16-20, 2018
jury trial, on April 26, 2018 final declaratory judgment was
entered in favor of Computer Program and Systems,
Inc./Evident, LLC (CPSI), and against Wazu Holdings,
Ltd./Evident, Inc. (Evident), declaring that CPSI's use
of a certain trademark did not constitute infringement on any
right of Evident in the trademark.[1] (Docs. 324, 325). On May 10, 2018,
CPSI filed a Bill of Costs. (Doc. 329). CPSI initially sought
$388, 875.27 comprised of $447.00 for fees of the Clerk; $29,
093.96 for printed/electronically recorded transcripts; $11,
165.83 for fees and disbursements for printing; $63, 726.94
for witness fees for trial; $1, 140.00 for fees for
exemplification and the costs of making copies; and $283,
301.54 for other costs. (Doc. 329). On September 24, 2018,
the Clerk taxed costs in the amount of $447.00, awarding only
the fees for the filings with the Clerk. (Doc. 333). On
December 5, 2018, CPSI moved to retax costs, to award costs
in the amount of $44, 259.94 for: trial witnesses $7, 405.57;
deposition transcripts $29, 093.96; expert witness deposition
attendance $240.00; printing $6, 380.47; and certified
documents/exemplifications $1, 140.00. (Doc. 340).
II.
Relevant Law
“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). Rule 54(d)(1) of the
Federal Rules of Civil Procedure provides:
“[u]nless a federal statute, these rules, or a court
order provides otherwise, costs--other than attorney's
fees--should be allowed to the prevailing party.”
Indeed, Rule 54(d) creates a “strong presumption that
the prevailing party will be awarded costs.”
Mathews v. Crosby, 480 F.3d 1265, 1276
(11th Cir. 2007) (citation omitted). However, Rule
54(d) does not confer authority to “tax costs to
reimburse a winning litigant for every expense”
incurred in the case. Farmer v. Arabian Am. Oil Co.,
379 U.S. 227, 234 (1964). Rather, absent explicit statutory
authorization, courts are limited to the costs enumerated in
28 U.S.C. § 1920. Crawford Fitting Co. v. J.T.
Gibbins, Inc., 482 U.S. 437, 445 (1987). Specifically,
the following may be taxed:
(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.
As an
initial matter, the parties dispute prevailing party status.
CPSI contends that it is the prevailing party because the
jury found no trademark infringement, supporting its request
for a declaratory judgment which issued via entry of a final
judgment. In contrast, Evident alleges that both
sides prevailed because the jury also found that
Evident had enforceable rights in the trademark. (Doc. 341 at
3-4). Essentially then, per Evident, because both sides
"prevailed" to some extent, there is no
prevailing party. The Court cannot agree. A “prevailing
party” is the party in whose favor judgment has been
rendered by the Court. Utility Automation 2000, Inc. v.
Choctawhatchee Elec. Co-op., Inc., 298 F.3d
1238, 1248 (11th Cir. 2002). Evident's
claims were dismissed with prejudice, and judgment
was entered in favor of CPSI (no trademark infringement). As
such, CPSI is the prevailing party.
III.
Witness fees
CPSI
seeks witness fee costs (trial attendance, subsistence, and
mileage) for Theodore H. Davis, Jr. ($2, 082.57), John Plumpe
($1, 865.63), Dr. Robert A. Robicheaux ($1, 423.41), and
Peter Winkelstein ($2, 033.90). (Doc. 340 at 3-11). The Court
awards a total of $3, 886.44.
Pursuant
to 28 U.S.C. § 1920(3), courts may tax costs for
“fees and disbursements for ...witnesses.”
Witness costs are set by 28 U.S.C. § 1821(a)-(d) which
provides, in relevant part:
(a)(1) Except as otherwise provided by law, a witness in
attendance at any court of the United States…shall be
paid the fees and allowances provided by this section.
(b) A witness shall be paid an attendance fee of $40 per day
for each day's attendance. A witness shall also be paid
the attendance fee for the time necessarily occupied in going
to and returning from the place of attendance at the
beginning and end of such attendance or at any time during
such attendance.
(c)(1) A witness who travels by common carrier shall be paid
for the actual expenses of travel on the basis of the means
of transportation reasonably utilized and the distance
necessarily traveled to and from such witness's residence
by the shortest practical route in going to and returning
from the place of attendance. Such a witness shall utilize a
common carrier at the most economical rate reasonably
available. A receipt or other evidence of actual cost shall
be furnished.
(2) A travel allowance equal to the mileage allowance which
the Administrator of General Services has prescribed,
pursuant to section 5704 of title 5, for official travel of
employees of the Federal Government shall be paid to each
witness who travels by privately owned vehicle. Computation
of mileage under this paragraph shall be made on the basis of
a uniformed table of distances adopted by the Administrator
of General Services.
(3) Toll charges for toll roads, bridges, tunnels, and
ferries, taxicab fares between places of lodging and carrier
terminals, and parking fees (upon presentation of a valid
parking receipt), shall be paid in full to a witness
incurring such expenses.
(4) All normal travel expenses within and outside the
judicial district shall be taxable as costs pursuant to
section 1920 of this title.
(d)(1) A subsistence allowance shall be paid to a witness
when an overnight stay is required at the place of attendance
because such place is so far removed from the residence of
such witness as to prohibit return thereto from day to day.
(2) A subsistence allowance for a witness shall be paid in an
amount not to exceed the maximum per diem allowance
prescribed by the Administrator of General Services, pursuant
to section 5702(a) of title 5, for official travel in the
area of attendance by employees of the Federal Government.
In sum,
recoverable costs include $40.00/day for the witness'
trial attendance, a common carrier expense at "the most
economical rate reasonably available," a per diem
subsistence[2]
if an overnight stay is required, and costs for mileage,
tolls, parking fees or taxicab fares. See,
e.g., PODS Ent., LLC v. U-Haul Int'l,
Inc., 2015 WL 5021668, *1 (M.D. Fla. Aug. 24, 2015);
Crouch v. Teledyne Continental Motors,
Inc., 2013 WL 203408, *14 (S.D. Ala. Jan. 17, 2013). A
witness may recover the cost of airfare if it is the most
economical rate (economy class rate versus business class)
reasonably available for round trip travel by common carrier.
See, e.g., Crouch, 2013 WL 203408,
*17 and *19 (reducing flight costs 50% because the
documentation was not sufficient to establish that travel at
the most economical rate).[3] Moreover, regarding subsistence (lodging
and M&IE), "[a] subsistence allowance for a witness
shall be paid in an amount not to exceed the maximum per diem
allowance prescribed[.]" 28 U.S.C. § 1821(d)(2).
Courts look at the maximum per diem allowance based on the
location where trial occurred and award the lesser
of the maximum per diem amount or the amount actually
paid/incurred. Santana v. RCSH Operations,
LLC, 2012 WL 3779013, *4 (S.D. Fla. Aug. 31, 2012)
(“the amount taxable is the amount actually paid or the
statutorily defined amount, whichever is less….”
(citations omitted); D.B. v. Orange Cty.,
Fla., 2015 WL 847293, *3 (M.D. Fla. Feb. 26, 2015)
(“[t]he general rule…is that expert witness fees
are not taxable….beyond the statutory per diem fee,
mileage and the subsistence allowance…under 28 U.S.C.
§ 1821[]”).
At the
outset, Evident asserts: "[g]enerally, an individual who
is not called as a witness at trial cannot be entitled to a
witness fee or related expenses. Duckworth v.
Whisemant, 97 F.3d 1393, 1399 (11th Cir.
1996); Bumpers, 2015 WL 6870122 at 19." (Doc.
341 at 4). The Court cannot agree. The U.S. Supreme Court in
Hurtado v. United States, 410 U.S. 578, 584-585
(1973) held that witness fee statutes are appropriate not
only for witnesses who testify, but for all witnesses who
“have been summoned and are...available to
testify.” Evident argues: "Ordinarily, a court may
not award a witness fee for someone who comes to the
courthouse but does not testify at the trial. 10 Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 2678 (3d ed.
2018)." (Doc. 341 at 4). Section 2678 actually
states:
Ordinarily, no fee may be taxed for someone who comes to the
courthouse but does not testify at the trial, the presumption
being that the person was not a necessary
witness…But this is no more than a presumption and
can be overcome if it appears that a court order or some
other extrinsic circumstance rendered that testimony
unnecessary….Thus, fees have been allowed when an
arrangement with the opposing counsel and concessions made in
open court ended the need for the witness's
testimony….It also has been held that costs can be
recovered when counsel refrained from calling the witness
because of a desire to avoid consuming further time and
thereby minimize delay, inconvenience, and unnecessary trial
expenses…..
10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 2678 (3d ed.
2018) (footnotes omitted and emphasis added).
Indeed,
"[f]ees for witnesses who were subpoenaed but did not
testify are generally recoverable unless their testimony
'was immaterial, or that the number subpoenaed who did
not testify was unduly excessive, or that the time they spent
in attendance and the fees claimed for them were manifestly
unreasonable.' United States v. Lynd, 334 F.2d
13, 16-17 (5th Cir. 1964)[]." Nationwide Ins. Co. v.
Nall's Newton Tire, 2015 WL 8207478, *5 (S.D. Ala.
Dec. 7, 2015) (awarding witness fees for an individual
"listed as a witness for trial and….presumed
necessary since there is no evidence to the contrary[]"
(footnote omitted)). See also e.g., Jones v.
Webb, 2013 WL 12250508, *2 (N.D. Ala. Nov. 26, 2013)
(even when witnesses "ultimately did not testify"
at trial, "the fact that…[counsel] listed them
suggested that it could be reasonable for them to
travel…..in the event they were needed at
trial…..reimbursement for one day of attendance and
mileage….is not unreasonable when a witness might be
needed at trial but is not ultimately called to the
stand[]"). As summarized in Strong v. Geico Gen.
Ins. Co., 2018 WL 671342, *1-2 (M.D. Fla. Jan. 10, 2018)
(emphasis added):
… Mr. Thompson was not called to testify at
trial….testimony at trial is not the test for awarding
service fees under Section 1920. Hughes ex rel. J.B. v.
Judd, …2015 WL 5135538, at *2 (M.D. Fla. July 17,
2015), report and recommendation adopted as modified sub
nom. Hughes v. Judd, ….. 2015 WL 5155032 (M.D.
Fla. Sept. 1, 2015) (recommending that the plaintiffs be
taxed the fees associated with serving a witness with a trial
subpoena even though she was not called to testify at trial).
Similarly, in determining whether a prevailing party may
recover witness fees, the relevant inquiry is not
actual testimony or physical presence but the readiness
to testify. Cadle v. Geico Gen. Ins. Co.,
…2015 WL 4352048, at *7 (M.D. Fla. July 14, 2015)
(citing Hurtado v. U.S., 410 U.S. 578, 586 (1973));
see Hernandez v. Wilsonart Int'l, Inc.,
….., 2011 WL 7092657, at *4 (M.D. Fla. Dec. 30, 2011)
report and recommendation adopted, 2012 WL 220265
(M.D. Fla. Jan.25, 2012) (awarding witness fees even though
case was dismissed on summary judgment).… GEICO
included Mr. Thomas on its witness list and
there is no evidence that he was unavailable and unprepared
to testify at trial.…Thus, the undersigned
recommends that GEICO recover the service and witness fees it
incurred to secure Mr. Thompson's
availability to testify at trial.
Bearing
this in mind, the Court now turns to the specific witnesses.
As detailed below, CPSI's witness costs are
GRANTED in part and DENIED in
part.
A.
Davis
With
regard to attendance, Davis attended trial for 6 days
(including a travel day) (April 15-20, 2018) and testified on
April 20, 2018. (Doc. 329-1 at 31-34; Doc. 340 at 4, 6 and n.
4). At the statutory rate of $40/day, this totals $240.00.
The Court awards $240.00.
Concerning
travel, CPSI submits costs of $813.20 for two (2) one-way
flights between Atlanta, GA and Mobile, AL. (Doc. 340 at 6
and n. 5). A review of the invoices (Doc. 329-1 at 33-34)
reveals that two (2) one-way flights were booked mere days
before travel. The trial setting was not a surprise. On May
19, 2017, all parties were notified of the trial being set
for the month of April 2018, with jury selection set for
April 3, 2018. (Doc. 147). Thereafter, the April 2018 trial
and jury selection settings were reconfirmed on October 25,
2017 (Doc. 177), and the specific dates for trial (April
16-20, 2018) were provided to all parties on February 5, 2018
(Doc. 226) and reconfirmed on March 22, 2018 (Doc. 281).
Given such notice, despite CPSI's assertions, Davis'
flights could have been attained at far more
reasonable economical rates. As such, the Court reduces
the request by 50%, awarding $406.60 for
flights. Crouch, 2013 WL 203408, *17.
For
Davis' transportation, CPSI seeks $117.37 for three (3)
UBER trips. (Doc. 329-1 at 36-38; Doc. 340 at 6 at n. 6). On
April 15, 2018, the UBER charge from the hotel to the airport
in Mobile, AL was $39.67 (with $8.00 tip). On April 20, 2018,
the UBER charge was $42.12 (with $10.00 tip). Also on April
20, 2018, another UBER charge was $35.58 (with $10.00 tip)
for travel from the GA airport to (apparently) Davis' GA
home/business). The Court awards $117.37 for
UBER costs.
Regarding
subsistence, courts award the lesser amount after
comparing the statutorily allowable rate versus the amount
actually paid, and only 75% of the maximum per diem rate is
recoverable for the first and last days of travel. CPSI seeks
$912.00 (at the maximum allowable per diem rate for April
2018 in Mobile, AL ($152/day for 6 days -- $93/day for
lodging plus $59/day M&IE). (Doc. 340 at 6 and n. 7). For
lodging, the per diem rate is less than the actual amount and
so is awarded -- $511.50 ($69.75 for the first and last days,
$93.00/day for the remainder). (Doc. 329-1 at 35). For
M&IE, the actual amount is less than the per diem and so
the actual amount is awarded -- $159.28 ($33.04 4/16, $33.54
4/17, $32.54 4/18, $26.12 4/19 and $34.04 4/20).
(Id.) The Court awards $670.78.
Thus, the total award for
Davis is $1, 434.75.
B.
Robicheaux
Relating
to attendance, Robicheaux attended trial for 6 days including
a travel day (April 15-20, 2018) and testified on April 20,
2018. (Doc. 329-1 at 40-41; Doc. 340 at 6-7 and n. 8). At the
statutory rate of $40/day, this totals $240.00. The Court
awards $240.00.
Concerning
travel, CPSI submits $271.41 in mileage for Robicheaux for
498 miles (he drove from Birmingham, AL to Mobile, AL and
back) at the applicable statutory rate in April 2018
($0.545). (Doc. 329-1 at 40; Doc. 340 at 7 at n. 9). The
Court awards $271.41 for mileage.
Regarding
subsistence, courts award the lesser amount after
comparing the statutorily allowable rate versus the amount
actually paid, and only 75% of the maximum per diem rate is
recoverable for the first and last days of travel. CPSI seeks
$912.00 for Robicheaux (at the maximum allowable per diem
rate of April 2018 for Mobile of $152/day for
lodging/M&IE for 6 days -- $93/day lodging plus $59/day
M&IE)). (Doc. 340 at 7 and n. 10). For lodging, the per
diem is less than the actual amount ($1, 089.84) and so is
awarded -- $511.50 ($69.75 for the first and last days,
$93.00/day for the remainder). (Doc. 329-1 at 40). For
M&IE, the actual amount is less than the $59/day per diem
and so the actual amount is awarded -- $100.00 ($20/day for 5
days). (Id.) The Court awards
$611.50.
The total award for
Robicheaux are $1, 122.91.
C.
Winkelstein
Concerning
attendance, Winkelstein attended trial for 3 days including a
travel day (April 17-19, 2018), and testified on April 19,
2018. (Doc. 329-1 at 42, 44-45; Doc. 340 at 8-9 and n. 11).
At the statutory rate of $40/day, this totals $120.00. The
Court awards $120.00.
Concerning
travel, CPSI submits flight costs totaling $1, 209.59. (Doc.
329-1 at 44-45; Doc. 340 at 9 and n. 12). The invoices reveal
one-way flights booked mere days before, or the day of,
travel. Given such notice, despite CPSI's assertions,
flights could have been attained at far more
reasonable economical rates. See
supra. As such, the Court reduces the request by 50%
and awards $604.79 for flight costs.
Crouch, 2013 WL 203408, *17.
For
transportation, CPSI submits $248.31 ($170.01 for car rentals
and $78.30 in parking fees). (Doc. 329-1 at 42, 46-48; Doc.
340 at 9 and n. 13). The Court awards $170.01 for the 3 day
car rental. (Doc. 329-1 at 47-48). Winkelstein paid $78.30 to
park his vehicle at the Buffalo, NY airport from April 17-23,
2000 (for 7 days at what appears to be a $11.18/day
rate), retrieving it on April 23rd. (Doc. 329-1 at 48). CPSI
asserts this parking fee was for airport parking while
Winkelstein was traveling for trial. However, Winkelstein
testified on April 19th. (Id. at 45). No.
documents support parking fees incurred from April 20-23 as
being recoverable. As such, the Court grants parking fees
only for April 17-19, 2018 in the amount of $33.55 (for 3
days). Thus, the Court awards a total of
$203.56 for transportation.
Regarding
subsistence, courts award the lesser amount after
comparing the statutorily allowable rate versus the amount
actually paid, and only 75% of the maximum per diem rate is
recoverable for the first and last days of travel. (Doc. 340
at 9 at n. 14). CPSI seeks $456.00 for Winkelstein (3 days at
the maximum allowable per diem rate of April 2018 for Mobile
$152/day for lodging and M&IE ($93/day for lodging plus
$59/day M&IE)). For M&IE, Winkelstein incurred actual
M&IE as follows: 48.78 4/17, $18.40 4/18, $36.96 4/18,
$40.65 4/18, $19.50 4/19, $26.00 4/19, $14.65 4/20. (Doc.
329-1 at 43, 48). On a daily basis for April 17, 19 and 20,
the actual amount is less than the $59/day M&IE per diem
allowed, but for April 18ththe actual amount is
more than the per diem allowed. As such, $108.93 is awarded
for Winkelstein's M&IE for April 17, 19 and 20, and
$59.00 is awarded for April 18th -- for a total
M&IE of $167.93. Concerning lodging, Winkelstein's
actual lodging amount is $543.78 for 3 nights. (Doc. 329-1 at
43). The per diem rate of $93/day is less than the actual
rate incurred. As such, the per diem rate is awarded for 3
nights totaling $232.50 ($69.75 for the first and last days,
$93.00/day for the remaining day). The Court awards
$400.43.
Thus, the total costs for
Winkelstein are $1, 328.78.
D.
Plumpe
CPSI
did not request Plumpe's witness fees in the bill of
costs. (Doc. 329 at 2; Doc. 329-1 at 2). This, even though
CPSI apparently included Plumpe's expenses in
the 137-page attachment to the bill of costs. The purpose of
a motion to retax is for the Court to "review the
clerk's action" on the costs requested.
Fed.R.Civ.P.Rule 54(d)(1). In otherwords, it is the
opportunity for the Court to review the clerk's prior
taxation of costs (as requested). It is not the opportunity
for a party to add costs not previously sought (even if
inadvertent). Plumpe's costs were not before the Clerk on
review of CPSI's bill of costs. CPSI's contention --
that because Plumpe's expenses were included somewhere in
the 137-page attachment, the costs were "requested"
-- is unpersuasive. It is not the task of this Court (or the
Clerk) to scour the record to search for costs for a party to
recover, when such costs are not requested or otherwise
brought to the Court's attention. As such, the Court
DENIES Plumpe's costs.
IV.
Depositions Transcripts
CPSI
seeks $29, 093.96 for 27 depositions of 23
witnesses (some deposed more than once), as "necessarily
obtained" for use in the case -- including the costs of
deposition exhibits[4] and video transcripts for certain expert
witnesses. (Doc. 340 at 11-16 and n. 20-22; Doc. 329-1 at
1-2). In support, CPSI contends that all of the depositions
were noticed and/or involved a witness identified by Evident
in its pretrial disclosures (listed as intend to call or may
call witness or witness whose deposition they intended to
present at trial). (Doc. 340 at 14 and n. 23-25 (citing Doc.
247 at 1-3)). Additionally, CPSI highlights that:
…the deposition costs associated with Verity, T.
Goodfellow, and P. Goodfellow were also reasonably
necessary…because they were read into evidence at
trial….deposition costs associated with Edwards,
Kalaw, K. Goodfellow, Stewart, Baker, Rappaport, Einhorn,
Douglas, Schneider, Browning, Hinckle, Kalenderian,
Humphries, Dye, Davis, Robicheaux, and Winkelstein were
reasonably necessary because those individuals testified at
trial….the deposition costs associated with Schneider,
Cerruti, Browning, Dye, Kalaw, Verity, Edwards, and K.
Goodfellow are ...