United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
BORDEN UNITED STATES MAGISTRATE JUDGE.
before the court is a Motion for Attorneys' Fees and
Sanctions (Doc. 141), a Motion to Stay (Doc. 143), and an
Objection to the Bill of Costs (Doc. 152).
court entered final judgment in this case on February 20,
2019. Doc. 140. On March 5, 2019, the Defendant, Alfa Mutual
Insurance Company (“Alfa”), filed a motion
seeking attorneys' fees and sanctions. Doc. 141. Along
with this motion, Alfa filed a Bill of Costs, and on March
19, 2019, the Clerk of the Court taxed costs against
Plaintiff Jennifer Akridge in the amount requested by
Alfa-$1, 966.60. Doc. 155. Also on March 5, Akridge appealed
the judgment in this case and moved for a stay of the
court's consideration of the attorneys' fees,
sanctions, and costs. On March 12, Akridge filed her
objection to the Bill of Costs.
reasons to be discussed, the court concludes that the Motion
to Stay is due to DENIED as to the Bill of Costs and GRANTED
as to the Motion for Attorneys' Fees and Sanctions, and
that the Objection to the Bill of Costs is due to be
SUSTAINED in part and OVERRULED in part.
Bill of Costs
has asked to stay this court's consideration of the Bill
of Costs while her appeal is pending, and separately has
objected to the Bill of Costs. In assessing whether to grant
a stay pending appeal, the court looks to four factors: (1)
whether the applicant for the stay has made a strong showing
that she is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the
public interest lies. Nken v. Holder, 556 U.S. 418,
434 (2009). Upon consideration of the relevant factors, the
court cannot conclude that there has been a strong showing
that Akridge will succeed on the merits of her claim on
appeal, and the court cannot find that any other factor
weighs in favor of a stay, so the court will consider
Akridge's objections to the Bill of Costs at this time.
to Rule 54(d)(1) of the Federal Rules of Civil Procedure,
“[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.”
Pursuant to 28 U.S.C. § 1920, deposition expenses may be
recovered if the deposition was “necessarily obtained
for use in the case.” 28 U.S.C. § 1920(2). While
generally there is a presumption that costs will be awarded,
when only the prevailing party knows the reason for a
particular cost the prevailing party must bear the burden of
showing why that cost was reasonably necessary under 28
U.S.C. § 1920. Helms v. Wal-Mart Stores, Inc.,
808 F.Supp. 1568, 1570 (N.D.Ga. 1992), aff'd,
998 F.2d 1023 (11th Cir. 1993).
concedes that a party may recover fees for printed or
electronically recorded transcripts pursuant to 28 U.S.C.
§ 1920(2), but contends that Alfa is improperly seeking
the costs of the transcripts for multiple depositions of
Susie White that were not related to issues in the case or
necessary because Susie White did not have knowledge of the
subject matter of many of the questions asked in her first
deposition even though she had been designated as Alfa's
Rule 30(b)(6) corporate representative. Akridge also argues
that the costs of obtaining a condensed or mini-transcript of
depositions should not be taxed because they are merely for
the convenience of counsel. Finally, Akridge objects that the
processing and delivery costs of the deposition transcripts
should not be taxed.
the first objection, Alfa responds that the depositions of
Susie White were used by the parties in the briefing in
support of and in opposition to the summary judgment motion
and are, therefore, taxable. The Eleventh Circuit has
explained that if “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). Although the second
deposition of Susie White was ordered by the court so that
she could address specific issues, both depositions were
relevant to issues raised by the motion for summary judgment
and discussed by Alfa in its briefs. Docs. 77 & 126.
Because both depositions of Susie White were used in relation
to the summary judgment motion, they are taxable. See
E.E.O.C., 213 F.3d at 621.
the mini-transcripts, Alfa was assessed additional charges
for a mini-transcript for only Susie White's December
deposition. Alfa concedes that this charge should not be
taxed. Doc. 160 at 4. The amount of the mini-transcript of
Susie White's December deposition was $30. Doc. 142 at 6.
Accordingly, the court will order the taxed costs to be
reduced by that amount.
regard to the delivery and processing charges, Alfa argues
that the processing and mailing fees included within the
invoices submitted with the Bill of Costs were for costs
relating to the depositions of Beth Chancey, Bob Plaster, and
Susie White, and therefore are recoverable. Doc. 142. In
support of her objection, Akridge has cited to case law for
the proposition that costs associated with delivering
depositions are not recoverable,  whereas Alfa has cited cases
for the opposite proposition. While there does not appear to
be binding authority on the precise issue of the taxation for
mailing costs of depositions, another judge of this court has
concluded that “courier services used to deliver the
deposition transcripts are ordinary business expenses and are
thus not recoverable.” McKitt v. Ala. Alc. Bev.
Control Bd., 2013 WL 6212157, at *2 (M.D. Ala. Nov. 26,
2013), aff'd, 571 Fed.Appx. 867 (11th Cir.
2014). This court is persuaded that delivery costs, including
mailing costs, of deposition transcripts should be considered
business expenses and should not be allowed as a matter of
course. See Computer Program & Sys. Inc. v. Wazu
Holdings, Ltd., 2019 WL 1119352, at *10 (S.D. Ala. Mar.
11, 2019) (stating that “requested costs for late fees,
expedited transcripts, postage, shipping, delivery and
handling charges related to the deposition transcripts are
non-recoverable as ordinary business expenses”).
Although Akridge references these costs in her objection
without identifying specific amounts, Alfa has identified a
$25 charge for postage and handling of the December
deposition of Susie White. Doc. 142 at 6. The court will
sustain the objection to this amount.
also objects to the processing fees listed in the court
reporters' invoices, but has not articulated a specific
reason why they are objectionable. As a result, Akridge has
not shown that the processing fees assessed by the court
reporters were costs merely incurred for counsel's
convenience or costs akin to delivery expenses so as to be a
mere business expense. Cf. Helms, 808 F.Supp. at
1571 (stating that “since both parties should be aware
of the reasons to take a deposition, this court holds that
the non-prevailing party should explain why the court should
not grant that cost”). The court, therefore, will
overrule the objection as to the two $12 processing fees.
Akridge has asked the court to consider that she has little
income, but she has not provided any substantiation for that
argument, so the court does not exercise its discretion to
sustain any objection to the Bill of Costs on that basis.
See Chapman v. AI Transport, 229 F.3d 1012, 1040
(11th Cir. 2000) (noting that the district court should not
consider the relative wealth of the ...