United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF OPINION AND ORDER
L.
Scott Coogler United States District Judge
Before
the Court is Plaintiffs' Bill of Costs. (Docs. 81 &
82.) Defendant Progressive Gulf Insurance Company
(“Progressive”) filed objections to some of the
costs that Plaintiffs requested (doc. 83), and Plaintiffs
have filed a response to those objections (doc. 84). The
matter is now ripe for review. For the reasons discussed
below, the Court ORDERS an award of costs reduced from
Plaintiffs' requested amount in the manner described
below.
I.
Background
On
November 7, 2017, Plaintiffs Hubert and Kemetha Richardson
brought a diversity action against Dorothy Dean Oswalt,
seeking damages for negligence and loss of consortium
following an automobile accident. (Doc. 1.) On June 14, 2018,
Plaintiffs amended their complaint to add a claim against
Progressive for underinsured motorist coverage. (Doc. 21.)
Plaintiffs settled their claims with Defendant Oswalt, but
the claim against Progressive proceeded to trial. At trial,
the jury found in favor of Plaintiffs and against
Progressive. (Doc. 79.) The Court then ordered that
Plaintiffs were entitled to recover their costs in the action
from Progressive. (Doc. 80.)
II.
Standard of Review
Rule
54(d) of the Federal Rules of Civil Procedure provides that
“[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.”
Fed.R.Civ.P. 54(d)(1). “Under Rule 54(d), there is a
strong presumption that the prevailing party will be awarded
costs.” Mathews v. Crosby, 480 F.3d 1265, 1276
(11th Cir. 2007). Congress has enacted 28 U.S.C. § 1920
(“§ 1920”), which defines the term
“costs” in Rule 54(d). Taniguchi v.
Kan.Pacific Saipan, Ltd., 566 U.S. 560, 565 (2012).
Section
1920 “now embodies Congress' considered choice as
to the kinds of expenses that a federal court may tax as
costs against the losing party.” Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,
440, 107 S.Ct. 2494, 2497 (1987). It states:
A judge or clerk of any court of the United States may tax as
costs the following: (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. Although the Court has discretion to
determine the appropriate award of costs, it abuses that
discretion if it awards costs in excess of the costs allowed
by § 1920. Maris Distributing Co. v. Anheuser-Busch,
Inc., 302 F.3d 1207, 1225 (11th Cir. 2002).
III.
Discussion
Plaintiffs'
bill of costs requested $400.00 for clerk fees, $851.35 for
summons and subpoena fees, [1] $4, 219.23 for deposition costs,
[2]
$551.52 for witness fees, [3]$260.75 for making copies of necessarily
obtained materials, and $400.43 in other costs. Progressive
requested the following reductions: 1) $3, 738.48 in
deposition costs, 2) $489.71 in witness fees, 3) $740.98 in
summons and subpoena fees, 4) the full $260.75 for making
copies of necessarily obtained materials, and 5) $260.43 in
other costs. The Court examines each objection in
turn.[4]
A.
Deposition Costs
Taxation
of deposition costs is authorized by § 1920(2). See
United States v. Kolesar, 313 F.2d 835, 837-38 (5th
Cir.1963) (“Though 1920(2) does not specifically
mention a deposition, . . . depositions are included by
implication in the phrase ‘stenographic
transcript.'”).[5] Whether the costs of a deposition are
taxable depends on whether the deposition was wholly or
partially taken necessarily for use in the case. Id.
“Because the parties presumably have equal knowledge of
the basis for each deposition, unlike costs relating to
photocopies, the non-prevailing party bears the burden of
showing that specific deposition costs or a court
reporter's fee was not necessary for use in the case or
that the deposition was not related to an issue present in
the case at the time of the deposition.” Monelus v.
Tocodrian, Inc., 609 F.Supp.2d 1328, 1337 (S.D. Fla.
2009) (citing W&O, Inc., 213 F.3d at 621).
Progressive
objects to the court reporter costs claimed by Plaintiffs for
the depositions of Plaintiff Hubert Richardson and Johnathan
Kidd, arguing that these depositions were not necessarily
taken. However, Progressive bears the burden of showing that,
at the time that the depositions were taken, they were not
necessary or related to an issue in the case. See In re
Fundamental Long Term Care, Inc., 753 Fed. App'x.
878, 882 (11th Cir. 2019). Progressive fails to meet
that burden. On the contrary, the record indicates that the
depositions of Richardson and Kidd were very much related to
a critical issue in the case. In their Motion for Leave to
Re-Depose Hubert Richardson, Progressive argued that
Kidd's deposition testimony conflicted with the initial
deposition testimony of Richardson on the key issue of lost
income, thus necessitating a second deposition of Richardson.
(Doc. 66 at 2-3.) Thus, not only did Progressive actively
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