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Computer Programs and Systems, Inc. v. Wazu Holdings, Ltd.

United States District Court, S.D. Alabama, Southern Division

March 11, 2019

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 ...

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