Opinion
No. 3:97-CV-2616-G
November 9, 2000.
MEMORANDUM OPINION AND ORDER
Prevailing Defendant in this employment discrimination action has submitted its Bill of Costs for $2,211.25. Plaintiff objects to a portion of these costs. The briefing on this dispute is complete, and this issue is now ripe for review.
The court is mindful of the fact that this case is currently on appeal. While ordinarily the filing of a notice of appeal divests the district court of jurisdiction with respect to any matters involved in the appeal, the court may review the clerk's taxation of costs while an appeal in pending. Lucas v. Florida Power Light Co., 729 F.2d 1300, 1301 (11th Cir. 1984).
Unless the Court otherwise directs, Costs are to be awarded to a prevailing party as a matter of course pursuant to Rule 54(d) of the Federal Rules of Civil Procedure. The express provisions of 28 U.S.C. § 1920, however, limit the Court's discretion in taxing costs against an unsuccessful claimant. Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S.Ct. 2494, 2497, 96 L.Ed.2d 385 (1987). That statute enumerates the following recoverable costs:
1) Fees of the Clerk and Marshal;
2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
3) Fees and disbursements for printing and witnesses;
4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
5) Docket fees under § 1923 . . .; and
6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretations services under § 1828. . .;28 U.S.C. § 1920 (West 1994). A district court may decline to award costs listed in the statute, but may not award costs omitted from the statute. Crawford Fitting Co., 482 U.S. at 44 1-42, 107 S.Ct. at 2497 .
Plaintiff lodges the following objections to Defendant's Bill of Costs:
1) Plaintiff objects to Defendant's request for the entire cost of his deposition;
2) Plaintiff objects to Defendant's request for the costs of Victor Manilla III's ("Manilla") and Charles NcNair's ("McNair") depositions;
Plaintiff's objections are found in his Motion to Review Clerk's Taxation of Costs Pursuant to Fed.R.Civ.P. 54(d)(1) and his Supplemented Motion to Review Clerk's Taxation of Costs Pursuant to Fed.R. Civ, P. 54(d)(1), both filed September 12. 2000.
3) Plaintiff objects to Defendant's request for video-taped deposition costs;
4) Plaintiff objects to Defendant's request for exemplification costs.
In its response to Plaintiff's motions, Defendant has agreed not to seek its costs for videotaping the depositions. Def's Resp. to Pl's Mot. at ¶ II. Accordingly, the court will only address the three remaining objections below.
1. Costs of Depositions
Plaintiff objects to an award of costs for the entire amount of his deposition and for the costs of the Manilla and McNair depositions. Plaintiff contends that Defendant's award should be limited to only those portions of these depositions which were actually used during the case by the court and by the defendant in its summary judgment pleadings. Pl.'s Mot. at 1-2; Pl.'s Supplemented Mot. at 1. The Court disagrees.
The cost of a deposition is taxable if the court finds that "all or any part [of the deposition] was necessarily obtained for use in the case." Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1553 (5th Cir. 1984) (citations and internal quotations omitted). A deposition need not be introduced into evidence for it to be considered necessary for a case; "as long as there is a reasonable expectation that the deposition may be used for trial preparation, it may be included in costs." Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 536 (5th Cir. 1999). Further, whether a deposition was necessary for a case is determined "in light of the facts known to counsel at the time it was taken." Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 258 n. 37 (5th Cir. 1997), cert. denied, 118 S.Ct. 690, 139 L.Ed.2d 636 (1998) (citing and quoting Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1099 (5th Cir. 1982).
The court is convinced that Plaintiffs deposition was "necessarily obtained for use in the case," and Defendant has shown that Manilla's and McNair's depositions were likewise necessary. At the time of these depositions, Defendant could not have known that summary judgment would be granted or whether these depositions would be utilized at trial. Because Defendant could reasonably expect that these depositions would be used in the case, they are entitled to recover those costs.
As to the amount to be awarded for these depositions, Defendant acknowledges that its bill of costs is not entirely accurate. Def.'s Resp. to Pl's Mot. at ¶ II. After verifying the amounts and making certain adjustments, Defendant now seeks to recover the total deposition costs of $1,201.65. Id. This figure includes the Mantilla and McNair depositions at $133.95 each, however, as Plaintiff points out in his reply, the invoice for these depositions suggests that the total costs for both is $133.95. See Def.'s Resp. to Pl.'s Mot. at last attachment. Accordingly, the court will reduce Defendant's request of $1,201.65 by $133.95 for a total of $1,067.70.
Plaintiff also complains in his reply that Defendant's costs for these depositions exceeds the rates charged by the Northern District of Texas for original transcripts and copies. Pl.'s Reply at 1. But he has cited no authority that Defendant's costs are limited to those rates charged by this district and the court has found none. As Defendant's costs do not otherwise appear to be unreasonable and were necessary for this case, the court will award Defendant the total amount of $1,067.70 for deposition costs.
2. Exemplification Costs
Plaintiff also objects to Defendant's request for $252.40 in exemplification costs for copies of documents. Plaintiff claims that these costs are not recoverable because the Defendant used copies of documents from its own official records and thus did not "obtain" these copies within the meaning of the statute. Pl.'s Supplemented Mot. at 2. The Court again disagrees.
25 U.S.C. § 1920 (4) allows the recovery of costs "for exemplification and copies of papers necessarily obtained for use in the case." 28 U.S.C. § 1920(4) (West 1994). Nowhere does the statute prohibit the recovery because the documents copied come from a particular source. Rather, before a district court can properly tax costs for photocopies, it must simply make a determination that the copies being requested "were necessarily obtained for use in litigation." See Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994) (citing Studiengesellschaft Kohle v. Eastman Kodak, 713 F.2d 128, 133 (5th Cir. 1983)). The party seeking the costs must offer proof of their necessity. Id . (citing Fogelman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991)).
Defendant informs the court that the copies produced were necessary to provide exhibits to its summary judgment motion and potential trial exhibits. Def.'s Resp. to Pl.'s Supplemented Mot. at ¶ III. Under these circumstances, the court finds that these copies were reasonably necessary for the defense and thus "necessarily obtained for use in litigation." See Goluba v. Brunswick Corp., 139 F.R.D. 652, 655 (E.D. Wis. 1991). Defendant, therefore, will be awarded $252.40 for costs of copies.
Conclusion
In sum, Plaintiffs Motion to Review Clerk's Taxation of Costs and Supplemented Motion to Review Clerk's Taxation of Costs, both filed September 12, 2000, are granted in part and denied in part. For the foregoing reasons, Defendant is entitled to and awarded, pursuant to Rule 54(d), $1,067.70 in deposition costs and $252.40 in copy costs for a total award of $1,320.10. These costs are to be taxed against the Plaintiff in accordance with Rule 54(d).