Opinion
Case No. 6:01-CV-454
February 21, 2003
Howard Wayne Britain, Tyler, TX, for Plaintiff.
Martin Samuel Schexnayder, Wilson, Elser, Moskowitz, Edelman Dicker, Houston, TX, for Defendant.
Ronald Lee White, White, Houston, TX, for Ocean Marine Mackillop Baham Indemnity Co., intervenor-defendant.
John L. Hagan, of Bayko, Gibson, Houston, TX, for La Gloria Oil Carnegie Gas Company, intervenor-plaintiff.
MEMORANDUM OPINION AND ORDER
On January 7, 2003, the Court entered a Final Judgment wherein the Court ordered Intervenor La Gloria Oil Gas Company "La Gloria" take nothing against Intervention-Defendant Ocean Marine Indemnity Company "OMI" and all costs were taxed against La Gloria. On January 21, 2003, OMI submitted its Bill of Costs in the amount of $16,402.06 (Docket No. 96). On January 29, 2003, La Gloria filed its Objections to the Bill of Costs and Motion for Disallowance (Docket No. 97). On February 7, 2003, OMI filed its Response thereto and reduced its Bill of Cost to $12,455.69 (Docket No. 98). The briefing on this issue is complete and this issue is now ripe for review.
ANALYSIS
Pursuant to Federal Rule of Civil Procedure 54(d), costs are to be awarded to the prevailing party as matter of course, unless the Court directs otherwise. However, the provisions of 28 U.S.C. § 1920 limit the Court's discretion in taxing costs against the unsuccessful litigant. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987). The statute permits 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 interpretation services under § 1828. . . .28 U.S.C. § 1920. A district court is permitted to decline to award costs listed in the statute, but may not award costs omitted from the statute. Crawford, 482 U.S. at 441-42.
La Gloria has raised the following objections to OMI's Bill of Costs:
(1) La Gloria contends that OMI has failed to substantiate and verify that any of its costs were necessary and reasonable;
(2) La Gloria objects to OMI's request for $3,064.80 in photocopying costs;
(3) La Gloria objects to OMI's request for $48.90 in outside photocopying service costs;
(4) La Gloria objects to OMI's request for $162.38 in exhibit preparation costs;
(5) La Gloria objects to OMI's request for $6,696.55 in expert witness fees;
(6) La Gloria objects to OMI's request for $141.44 in total mileage costs;
(7) La Gloria objects to OMI's request for $529.07 in hotel costs;
(8) La Gloria objects to OMI's request for $1,600.00 in mediation fees; and
(9) La Gloria objects to OMI's request for $212.55 in telephone conference costs.
La Gloria asserts the above objections because: (1) the fees sought by OMI are not recoverable under 28 U.S.C. § 1920; and (2) OMI has failed to prove that the costs were "necessarily obtained for use in the litigation." The Court will address each of the objections in turn.
1. Failure to Substantiate Costs
La Gloria contends that OMI has failed to substantiate or verify its costs. OMI cured this deficiency in its Reply by providing the Court with various documents pertaining to costs incurred by OMI. Consequently, this objection is overruled.
2. Photocopying Costs and Outside Photocopying Service Costs
OMI seeks an award of $3,064.80 in photocopying costs. La Gloria challenges this amount on the grounds that it cannot determine from OMI's Bill of Costs what items were copied, whether multiple copies of the identical items were copied, and whether the copies were necessary for use in this case.
Costs of photocopies necessarily obtained for use in the litigation are recoverable upon proof of necessity. 28 U.S.C. § 1920(4); Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994). The party seeking costs need not "identify every xerox copy made for use in the course of legal proceedings." Fogleman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991). However, it must demonstrate some connection between the costs incurred and the litigation. Id. Charges for multiple copies of documents, attorney correspondence, and other such items are not recoverable. Id.
OMI has failed to attach invoices to its Bill of Costs. The only attachment regarding photocopying costs is the affidavit of Vicki Hood, wherein she states that OMI photocopied 10,216 pages of documents at .30 cents each page for a total of $3,064.80. However, the affidavit does not categorize the photocopies so that the Court may reasonably determine the copies which were necessary and those which were not. Moreover, the affidavit does not attempt to group the costs into categories of documents, i.e., how much was spent on discovery documents, how much was spent on materials provided by its own experts, how much was spent on trial exhibits. OMI has not met its burden to show necessity and, therefore, the entire amount is disallowed.
OMI seeks an award of $48.90 in outside photocopying service costs. In support of this award, OMI attaches a February 11, 2002 letter from Martin S. Schexnayder, Esq. (Mr. Schexnayder") of Wilson, Elsner, Moskowitz, Edelman Dicker LLP to Ronald White, Esq. of White, Mackillop Baham, P.C., wherein Mr. Schexnayder requests an amount of $48.90 for copying costs for all live pleadings and discovery regarding this case. Photocopies are not recoverable, absent substantiation that the copies were for documents or exhibits used in presenting the case. See Scribner v. Waffle House, Inc., 1998 WL 47640, at *1 (N.D.Tex. February 2, 1998). Plaintiff provides no such substantiation. Accordingly, the Court will disallow the costs for outside photocopying service costs.
3. Exhibit Preparation Costs
OMI seeks an award of $162.38 in exhibit preparation expenses. La Gloria objects contending that exhibit preparation costs are not compensable. The Court agrees. The invoice from Jet Litigation Support Services, Inc., indicates that the exhibit preparation expenses were for enlarged photocopies. Although enlarged photocopies are not specifically authorized by section 1920, the Fifth Circuit has held that "where the parties agree to try a case on enlarged copies, the enlargements should be treated like any other copies for the purpose of taxing costs." Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1553 n. 36 (5th Cir. 1984) (noting that "we do not decide whether the costs of enlarging copies may always be taxed"); see also Nelson v. Sisters of Charity of the Incarnate Word, 967 F. Supp. 929, 933 (S.D.Tex. 1997) (fees for blowups are not recoverable under § 1920). Because OMI fails to show an agreement between the parties to use enlarged photocopies, this cost is disallowed.
4. Expert Witness Fees
OMI seeks $6,696.55 in witness fees for its only expert witness, Jeffrey R. Bale, Esq. ("Mr. Bale"), who attended the one day trial. La Gloria objects contending that expert witness fees are not compensable. A prevailing party is entitled to recover witness fees in the amount of $40.00 per day of testimony. Keeton v. Wal-Mart Stores, Inc., 21 F. Supp.2d 653, 662 (E.D.Tex. 1998); 28 U.S.C. § 1821(b) 1920(3). A prevailing party is also entitled to recover subsistence and travel expenses for its expert witnesses. See Auto Wax Co. v. Mark V Products, Inc., 2002 WL 265091, at *7 (N.D.Tex. Feb. 22, 2002); 28 U.S.C. § 1821(c)-(d). Based on Mr. Bale's invoice, the Court determines that OMI incurred $278.85 in subsistence and travel expenses. Therefore, OMI is entitled to $278.85 in subsistence and travel expenses for its expert witness, along with the $40.00 per day of testimony, for a total amount of $318.85. Accordingly, the Court will reduce OMI's request for expert witness fees in the amount of $6,377.70.
Mr. Bale's invoice provides that he drove 490 miles to and from Tyler, Texas at a rate of .35 cents per mile for a total of $171.50. The invoice also provides that he paid $107.35 for a hotel in Tyler, Texas.
5. Total Mileage and Hotel Costs
OMI seeks an award of $141.44 in total mileage costs and $529.07 in hotel expenses for the attorneys. La Gloria objects contending that travel and hotel costs for attorneys are not compensable. The Court agrees. Substantial authority supports La Gloria's contention that travel and hotel expenses for attorneys are not recoverable. See, e.g., Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993), cert. denied, 510 U.S. 1195 (1993); Walton v. Autotrol Corp., 1998 WL 531881, at *3 (N.D.Tex. Aug. 18, 1998) ("Although 28 U.S.C. § 1821(a)(1) provides for taxing of witnesses' travel, it does not authorize the court to reimburse [attorneys] for their own expenses. . . ."); see also Holmes v. Cessna Aircraft Co., 11 F.3d 63, 65 (5th Cir. 1994); Nissho-Iwai Co., 729 F.2d at 1551-52. OMI does not cite any authority to the contrary. Therefore, OMI's request for total mileage and hotel costs is disallowed.
6. Mediation Fees
OMI requests $1,600.00 in mediation fees. La Gloria objects contending that such costs are not compensable. The Court agrees that these costs are not recoverable. See Scribner, 1998 WL 47640, at *1. Therefore, OMI's request for mediation fees is disallowed.
7. Telephone Conference Costs
OMI seeks an award of $212.55 in telephone conference costs. La Gloria objects contending that telephone conference costs are not compensable. The Court agrees. "[T]elephone expenses, like postal expenses, are not listed in [section 1920] and represent `overhead' costs, not litigation costs." Embotelladora Agral Regiomontana, S.A. v. Sharp Capital, Inc., 952 F. Supp. 415, 418 (N.D.Tex. 1997) (citing cases). Telephone conference costs come under the auspices of telephone expenses. Accordingly, OMI's request for telephone conference costs is disallowed.
CONCLUSION
In sum, La Gloria's Objections to OMI's Bill of Costs are OVERRULED in part and SUSTAINED in part. OMI's requested costs are reduced by the following amounts: $3,064.80 for photocopying costs; $48.90 for outside photocopying service costs; $162.38 for exhibit preparation costs; $6,377.70 for expert witness fees; $141.44 for total mileage costs; $529.07 for hotel costs; $1,600.00 for mediation fees; and $212.55 for telephone conference costs. The reduction totals $12,136.84. When subtracted from OMI's Bill of Costs, the Court finds that OMI is entitled to $318.85 in costs pursuant to Rule 54(d). These costs are to be taxed against La Gloria in accordance with Rule 54(d). An Amended Final Judgment will be filed in accordance with this Memorandum Opinion and Order.