Opinion
CV-2018-525
06-08-2022
JOSHUA BROWN, Plaintiff, v. NORTRAX, INC., CODY CRAIG, and MAINE TURNPIKE AUTHORITY, Defendants.
Plaintiff-Sheldon Tepler, Esq. Defendant Nortrax and Craig-Martha Gaythwaite, Esq Defendant MTA-Elizabeth Stouder, Esq.
Plaintiff-Sheldon Tepler, Esq.
Defendant Nortrax and Craig-Martha Gaythwaite, Esq
Defendant MTA-Elizabeth Stouder, Esq.
ORDER ON DEFENDANT MAINE TURNPIKE AUTHORITY'S BILL OF COSTS
MARYGAY KENNEDY, JUSTICE
Before the Court is Defendant Maine Turnpike Authority's ("MTA") Bill of Costs. For the following reasons, the Court awards costs totaling $4,454.10 to MTA.
I. Background
This matter arises from a motor vehicle accident that occurred in the vicinity of Exit 48 of the Maine Turnpike on January 20, 2017 ("the Accident"). (J.S.U.F. ¶¶ 1, 3.) Plaintiff Joshua Brown filed this suit for personal injuries he sustained in the Accident. In . Count III of his Complaint, Mr. Brown alleged that MTA "improperly set up signage and warnings of construction," leading to the Accident. (Compl. ¶¶ 12-13.) Defendants Cody Craig and Nortrax, Inc. (collectively, the "Nortrax Defendants") brought a crossclaim against MTA for indemnity and/or contribution.
MTA moved for summary judgment on the basis that it is immune from suit under the Maine Tort Claims Act, 14 M.R.S. §§ 8101-8118 ("MTCA"), which bars Mr. Brown's claim and the Nortrax Defendants' crossclaim. On March 29, 2022, the Court entered summary judgment in favor of MTA on the issue of its immunity from suit. On April 8, 2022, MTA submitted its Bill of Costs pursuant to 14 M.R.S. § 1502-D and M.R. Civ. P. 54(d), which Mr. Brown and the Nortrax Defendants have opposed. MTA requests that the Court award the following costs:
| Filing fees | |
| Motion for summary judgment | $225.00 |
| Deposition Costs | |
| John Cannell 4/30/19 Deposition Transcript | $323.70 |
| Joshua Brown 6/14/19 Deposition Transcript | $226.55 |
| Cody Craig 8/22/19 Deposition Transcript 8/15/19 Deposition Transcript | $249.00 $345.85 |
| John Cannell and William Thompson 8/12/19 Deposition Transcript | $384.00 |
| Jeffrey Nadeau 9/27/19 Deposition Transcript 8/17/21 Deposition Transcript and Court Reporter Appearance Fee | $199.50 $290.05 |
| Dr. Stephen Bamberger 10/12/20 Deposition Transcript | $222.90 |
| Brian Taddeo 8/13/21 Deposition Transcript and Court Reporter Appearance Fee | $330.00 |
| Ralph Norwood 9/7/21 Deposition Transcript 11/18/21 Deposition Transcript | $217.50 $357.50 |
| Richard McAllister Deposition Preparation Expert Fees 10/22/21 Deposition Transcript | $1583.24 $277.55 |
| William Howerton 11/16/2021 Deposition Transcript and Court Reporter Appearance Fee | $805.00 |
MTA supports its Bill of Costs with documentation of each requested cost as well as the affidavit of Attorney Stouder.
II. Legal Standard
M.R. Civ. P. 54(d) provides: "Costs shall be allowed as of course to the prevailing party, as provided by statute and by these rules, unless the court otherwise specifically directs." "In order to determine who has prevailed, the trial court 'must look at the lawsuit as a whole to determine which party was the winner and which the loser.'" Landis v. Hannaford Bros., 2000 ME 111, ¶ 6, 754 A.2d 958 (quoting Dodge v. United Servs. Auto. Ass'n, 417 A.2d 969, 975 (Me. 1980)) (quotation marks omitted). Pursuant to 14 M.R.S. § 1502-D, the prevailing party must submit a bill of costs "not later than 10 days after entry of judgment."
Regarding allowable deposition costs, M.R. Civ. P. 54(g) provides:
The taxing of costs in the taking of depositions shall be subject to the discretion of the court. No costs shall be allowed unless the court finds that the taking of the deposition was reasonably necessary, whether or not the deposition was actually used at trial. Taxable costs may include the cost of service of subpoena upon the deponent, the reasonable fee of the officer before whom the deposition is taken, the stenographer's reasonable fee for attendance, and the cost of the original transcript and one copy of the testimony or such part thereof as the court may fix and, for depositions used at trial in lieu of live testimony, a reasonable fee for appearance by any expert and costs incident to preparing, editing and presenting the deposition at trial.
Pursuant to 16 M.R.S. § 251, the Court may also allow costs for an expert witness's attendance at trial. However, costs for an expert witness's attendance at a deposition or any proceeding other than a trial are not allowable. Landis, 2000 ME 111, ¶ 13, 754 A.2d 958 ("[T]he cost of an expert witness for attending a deposition is not allowable."); Oliver v. E. Me. Med. Ctr., 2018 ME 123, ¶ 44,193 A.3d 157 (holding that the Superior Court did not err by denying the prevailing party's request for an award of expert witness costs generated by a prelitigation panel proceeding).
III. Discussion
Mr. Brown and the Nortrax Defendants raise three issues concerning MTA's Bill of Costs. First, they argue that MTA has submitted its Bill prematurely. Second, they argue that certain costs sought by MTA are not allowable. Finally, they dispute whether and how the Court should apportion costs among them. The Court will address each issue in turn.
A. Timeliness
Mr. Brown contends that MTA has brought its Bill of Costs prematurely because MTA is not yet a "prevailing party." Because Mr. Brown's claims against the Nortrax Defendants remain pending, he asserts that the Court's entry of summary judgment in MTA's favor is not a final judgment. Mr. Brown argues that MTA cannot be a prevailing party if the Court has not yet entered final judgment.
This argument is unavailing. Neither Rule 54(d) nor 14 M.R.S. § 1502-D specifically limit their application to a final judgment. Moreover, MTA is clearly a prevailing party at this juncture because the Court entered summary judgment in MTA's favor on the issue of its immunity under the MTCA, which bars the only claim and crossclaim against it. Cf. Me. Sch. Admin. Dist. No. 35 v. R., 321 F.3d 9, 16 (1st Cir. 2003) (stating that a defendant who wins "a clear-cut victory on the sole issue" may qualify as a "prevailing party" for the purpose of an attorney's fees award pursuant to 42 U.S.C. § 1988 even in absence of final judgment).
B. Allowable Costs
The fee for filing MTA's Motion for Summary Judgment is, of course, recoverable. See 14 M.R.S. § 1502-B(1). In its discretion, the Court may also allow appropriate deposition costs. Mr. Brown and the Nortrax Defendants oppose: (1) transcript costs for depositions taken by parties other than MTA, and (2) costs associated with deposition preparation by Richard McCallister, MTA's expert witness.
As set out above, MTA seeks its costs of obtaining copies of the transcripts from thirteen depositions. Because Rule 54(g) commits to the Court's discretion "the taxing of costs in the taking of depositions," the Nortrax Defendants contend that MTA is not entitled to costs associated with depositions that it did not take. This is an overly narrow reading of the rule. Reading Rule 54(g) in conjunction with Rule 54(d), which broadly provides that "[c]osts shall be allowed as of course to the prevailing party," it is apparent that "costs in the taking of depositions" are not limited to costs of depositions noticed or taken by the prevailing party. See M.R. Civ. P. 54(g) Advisory Committee's Note to 1975 amend., Dec. 1975 ("As a practical matter, in most cases the attorney for either party, whether or not he is taking the deposition, needs to have a copy of the transcript in order adequately to prepare for trial."); Packard v. Cent. Me. Power Co., CV-80-453, 1984 Me. Super. LEXIS 157, at *8-10 (Sept. 20, 1984) (allowing costs of copies of all depositions and other costs associated with depositions initiated by the defendant).
Obtaining a copy of all deposition transcripts was reasonably necessary for preparing MTA's motion for summary judgment. Neither party disputes, and the Court finds, that the depositions taken by MTA-Mr. Craig; Dr. Bamberger, Mr. Brown's medical expert; and William Howerton, the Nortrax Defendants' liability expert-were reasonably necessary. The Court will allow the costs of one copy of each deposition transcript and reasonable court reporter appearance fees incurred by MTA.
However, the Court cannot allow the cost of MTA's expert witness's preparation for his deposition because the deposition was not used at trial in lieu of live testimony. See M.R. Civ. P. 54(g); Landis, 2000 ME 111, ¶ 13, 754 A.2d 958. Accordingly, costs are awarded as follows:
| Filing fees | $225.00 |
| Deposition Costs | $4229.10 |
| Total | $4454.10 |
C. Apportionment of Costs
Mr, Brown argues that the Nortrax Defendants should "bear the brunt" of any costs awarded to MTA because the Nortrax Defendants noticed most of the depositions and took more cumulative testimony than Mr. Brown. The Nortrax Defendants argue that any costs should be allocated "equally."
By obtaining summary judgment in its favor, MTA simultaneously prevailed against Mr. Brown's claim and the Nortrax Defendants' crossclaim. Although the Nortrax Defendants may have driven up MTA's costs, Mr. Brown initiated this action. Moreover, Mr. Brown does not claim that financial hardship justifies reducing his liability for MTA's costs. See 14 M.R.S. § 1502-D. Accordingly, Mr. Brown, Mr. Craig, and Nortrax, Inc. are jointly and severally liable for the entirety of the costs awarded to MTA. See Suero-Algarin v. Caguas, No. 1:14-cv-01508-SCC, 2021 U.S, Dist, LEXIS 130397, at *7-8 (D.P.R. July 13, 2021) ("Joint and several liability for costs is the general rule unless equity otherwise dictates."); Concord Boat Corp. v. Brunswick Corp., 309 F.3d 494, 497 (8th Cir. 2002) (same); In re Paoli R. Yard PCB Litig., 221 F.3d. 449, 469 (3d Cir. 2000) ("We read the sparse case law surrounding this issue as placing the burden on the losing parties to introduce evidence and persuade the court that costs should be apportioned, and in the event that they fail to do so, the default rule is that costs may be imposed jointly and severally.").
IV. Conclusion
For the foregoing reasons, the Court awards MTA $225.00 for filing fees and $4,229.10 for its deposition costs. The Court disallows MTA's costs of its expert witness's preparation for deposition because the deposition was not used at trial.
The entry is:
Maine Turnpike Authority's Bill of Costs ALLOWED IN PART as set forth above. MTA is awarded costs of $4,454.10, for which Plaintiff Joshua Brown and Defendants Cody Craig and Nortrax, Inc. are jointly and severally liable.
The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).