Opinion
3:00-CV-1892
February 27, 2004
DECISION and ORDER
By Decision and Order dated November 3, 2003, the Court granted Defendants' motion for summary judgment. Thereafter, Defendants moved for costs pursuant to FED. R. Civ. P. 54(d)(1). Plaintiff objects. The Court makes the following disposition of Plaintiff's objections to Defendants' bills of costs.
Defendant Tiska
With respect to Plaintiff's objection that he was not served with notice of at least one day in conformance with Fed.R.Civ.P. 54(d)(1), costs have not yet been taxed pending resolution of these objections. Because costs have not yet been taxed, Plaintiff's first objection is overruled.
Plaintiff next objects to taxation of costs for Defendant Tiska's copy of Richard LoGuidice's deposition totaling $327.85 (stenographer fees in the amount of $137.85 and subpoena and witness fees of $190.00). Taxation for the cost of a deposition not used at trial lies in the discretion of the court. Whitfield v. Scully, 241 F.3d 264, 269 (2d Cir. 2001). A deposition was necessarily obtained within the meaning of the statute where it was used by the Court in ruling on a motion for summary judgment. Bathke v. Casey's General Stores, Inc., 64 F.3d 340, 347 (8th Cir. 1995) (finding depositions necessary where used in ruling on motion for summary judgment); Brown v. Inter-Ocean Ins. Co., 438 F. Supp. 951, 955-6 (N.D. Ga. 1977). To determine whether to tax a party for costs of depositions the Court considers the importance of the deposition to a decision on a successful motion for summary judgment. Bathke, 64 F.3d at 347; Brown, 438 F. Supp. at 955-6. LoGuidice's deposition was not necessary to the resolution of the summary judgment motions. Accordingly, the Court disallows the $327.85 claimed for the LoGuidice deposition.
Plaintiff next objects to taxation of costs for photocopies in the amount of $2,006.60 in postage, Federal Express delivery in the amount of $330.87, and facsimile transmissions in the amount of $250.50 on the grounds that Defendant failed to itemize these costs. Expenses for photocopies, postage and facsimiles are recoverable by the prevailing party at the discretion of the court where they are necessarily obtained for the use in the case. Concord Boat Corporation v. Brunswick Corporation, 309 F.3d 494, 498 (8th Cir. 2002) (affirming taxation of photocopy expense "so long as [the district court] does not act arbitrarily" by considering irrelevant factors): Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1049 (5th Cir. 1998) (affirming district court's order to tax costs of postage and facsimile without a "clear showing of abuse of discretion").
The Defendant, in exhibit A, listed expenses on a law firm bill divided by year and expense category. There is no indication for what purposes, or in what quantities, the expenses were incurred. The Court does recognize, however, Defendant necessarily incurred some of these costs preparing his successful motion for summary judgment. Accordingly, the Court disallows half of the claimed costs.
For the foregoing reasons, the Court allows costs for Defendant Tiska in the following amount:
1) $1,003.30 for photocopies;
2) $125.25 for facsimile transmission costs;
3) $146.16 for U.S. postage fees;
4) $19.28 for Federal Express delivery;
5) $180.00 for fees for service of subpoena and witness fees for witness;
6) $1,179.71 for fees of the stenographer for the depositions.
The total cost to be taxed is $2,653.68.
Defendant Hrazanek
With respect to Plaintiff's objection that he was not served with notice of at least one day in conformance with Fed.R.Civ.P. 54(d)(1), costs have not yet been taxed pending resolution of these objections. Because costs have not yet been taxed, Plaintiff's first objection is overruled.
Plaintiff next objects to Defendant's $400 summary judgment production costs. Pursuant to the Bill of Costs form used by the Court, Defendant requested reimbursements for fees and disbursements for production of the summary judgement motion in the amount of $400.00. Because the Defendant specified that the printing costs were attributable to his successful motion for summary judgment, the Court finds the costs necessarily obtained. Accordingly, the Court overrules Plaintiff's second objection.
Plaintiff next objects to Defendant's expenses for the deposition of Defendant's expert, Leigh Hunt, and for Plaintiff's expert, Barry Kamins, Esq. The Court disallows costs related to the expert witnesses because the depositions were not used in deciding the motion for summary judgment.
For the foregoing reasons, the Court allows costs for Defendant Hrazanek in the amount of $400.00 for fees and disbursements for printing.
CONCLUSION
Costs are allowed to Defendant Tiska in the amount of $2,653.68. Costs are allowed to Defendant Hrazanek in the amount of $400.00.
IT IS SO ORDERED.