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Richardson v. Oswalt

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

November 18, 2019

HUBERT RICHARDSON, et al., Plaintiffs,
v.
DOROTHY DEAN OSWALT, et al., Defendants.

          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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