Opinion
Civil Action No. 1:02-cv-2725-GET.
August 16, 2006
ORDER
The above-styled matter is presently before the court on plaintiff's motion to strike the bill of costs or alternatively to correct clerical errors in the judgment (a/k/a "motion to strike") [docket no. 70].
On September 5, 2002, plaintiff filed this personal injury action in the State Court of Fulton County, Georgia against Marriott International, Inc. d/b/a Atlanta Marriott Marquis and Otis Elevator Company alleging that he was injured while exiting an escalator due to defendants' negligence. On October 4, 2002, defendants removed the action to this court. On December 9, 2002, plaintiff amended his complaint to add HMA Realty Limited Partnership as a defendant.
On April 8, 2004, the court granted defendants' motions for summary judgment. Plaintiff filed a notice of appeal on May 5, 2004. On May 7, 2004, Defendants Marriott International and HMA Realty ("the Marriott/HMA defendants") filed their hill of costs which the clerk taxed against plaintiff on May 10, 2004. On May 13, 2004, plaintiff filed a motion to strike the Marriatt/HMA defendants' bill of costs or, alternatively, to correct clerical errors in the judgment on the ground that defendants seek costs not allowed under the statute. This court stayed plaintiff's motion to strike while the action was pending before the Eleventh Circuit Court of Appeals. On August 5, 2006, the Eleventh Circuit Court of Appeals affirmed the district court. Therefore, plaintiff's motion to strike is ripe for decision.
The Marriott/HMA defendants seek $5,880.67 in costs. Plaintiff objects to that portion of the Bill of Costs related to courier services ($122.00), parking ($33.00), FedEx ($33.47), travel expenses ($1,197.69), and fees for Dr. Warner Wood ($750.00).
The district court is authorized to tax costs for the following:
(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 section 1923 of this title; (6) Compensation of court appointed experts. . . . .28 U.S.C. § 1920. The district court has discretion to decline to tax, as costs, the items set forth in § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442-43, 107 S. Ct. 2494, 2497-98 (1987).
First, plaintiff argues that because five of the seven items of costs requested are not authorized by statute, the entire bill of costs should be stricken and denied. Where a bill of costs contains unrecoverable expenses, the appropriate remedy is to deny only those expenses and reduce the cost award accordingly.See Gilchrist v. Bolger, 733 F.2d 1551 (11th Cir. 1984). Therefore, the court will consider each objection to the Bill of Costs in turn.
Courier Service
Defendants seek $122.00 for costs of a courier service to deliver filings to the court and $33.47 for FedEx services for a "package sent to client" and for a "package to Downey Orthopedic Medical Group" which defendants contend was necessary to rush production of plaintiff's medical records. Such costs are not allowed. See Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir. 1996) (denying costs for general copying, computerized legal research, postage, court parking and expert witness fees); Corsair Asset Mgt., Inc. v. Mos kovitz, 142 F.R.D. 347 (N.D. Ga. 1992) (courier costs not allowed). Therefore, these costs are disallowed in their entirety. Parking
Defendants' Bill of Costs seeks $33.00 for parking. Defendants appear to concede that this is not a cost authorized by statute. Again, parking fees are not recoverable as costs. See Duckworth 97 F.3d at 1399. Therefore, this item of costs is disallowed.
Travel Expenses
Defendants seek $1,197.69 for travel expenses. Defendants contend that these expenses are recoverable because they were incurred for travel to California to take a second deposition of plaintiff. According to defendants, this second deposition was necessitated by the extreme increase in medical expenses alleged by plaintiff.
Reimbursement for travel expenses of attorneys is not provided for in the text of 28 U.S.C. § 1920. See Grad v. Bunzl Packa in Supply Co., 161 F.R.D. 477, 478 (N.D. Ga. 1995) (explicit statutory authorization is a prerequisite to a federal court's power to shift litigation costs). Additionally, travel of attorneys is not a taxable cost of taking depositions "`unless extraordinary or compelling circumstances'" exist. Dauperty, 174 F.R.D. at 124 (quoting George R. Hall, Inc. v. Superior Trucking Co., Inc., 532 F. Supp. 985, 995 (N.D. Ga. 1982)). The court finds that the second deposition of plaintiff, under the circumstances of this case, does not present such an extraordinary and compelling circumstance as to warrant an award of costs for attorney travel expenses. Therefore, this item of costs is disallowed.
Warner Wood, M.D.
Defendants seek $750.00 for the fee paid to Dr. Warner Wood to review plaintiff's medical records. Defendants argue that this fee was incurred due to plaintiff's increased claim for medical expenses. Dr. Wood was not a court-appointed expert nor was he ever identified as a witness. Therefore, there does not appear to be any statutory authority to support this item of cost. Furthermore, defendant fails to cite the court to any legal authority which would permit the court to tax this item of cost to plaintiff. Therefore, the costs associated with Dr. Wood's review of plaintiff's medical records are disallowed.
In light of the foregoing, plaintiff's motion to strike the bill of costs or alternatively to correct clerical errors in the judgment (a/k/a "motion to strike") [docket no. 70] is DENIED IN PART and GRANTED IN PART. The motion is DENIED to the extent plaintiff seeks to strike the Bill of Costs in its entirety. The motion is GRANTED to the extent it seeks a reduction in the Bilk of Costs based on objections. Plaintiff's objections to the Bill of Costs are SUSTAINED. Defendants' Bill of Costs is reduced by $2,136.16, leaving $3,744.51 in allowable costs. The Clerk of Court is DIRECTED to tax the amended costs in the amount of $3,744.51 against plaintiff and in favor of defendants Marriott/HMA.
Summary
Plaintiff's motion to strike the bill of costs or alternatively to correct clerical errors in the judgment (a/k/a "motion to strike") [docket no. 70] is DENIED IN PART and GRANTED IN PART. The motion is DENIED to the extent plaintiff seeks to strike the Bill of Costs in its entirety. The motion is GRANTED to the extent it seeks a reduction in the Bill of Costs based on objections. Plaintiff's objections to the Bill of Costs are SUSTAINED. The Clerk of Court is DIRECTED to tax the amended costs in the amount of $3,744.51 against plaintiff and in favor of defendants Marriott/HMA.
SO ORDERED.