Opinion
Case No. 2:98CV732K
April 24, 2000.
ORDER
This matter is before the court on Defendant Carriage Cove Ltd.'s Motion for Entry of Judgment and for Other Relief ("Defendant's Motion") and Defendant's Objection to Plaintiff's Memorandum of Costs and Verification of Bill of Costs ("Defendant's Objection"). The court has considered carefully the memoranda and other materials submitted by the parties. Now being fully advised, the court renders the following Order.
I. BACKGROUND
Defendant's Motion relates to an Offer of Judgment (the "Offer") that Defendant made pursuant to Rule 68 of the Federal Rules of Civil Procedure ("FRCP"). In that Offer, Defendants offered "to allow judgment to be taken against it in the amount of FIFTY THOUSAND AND ONE DOLLARS ($50,001.00) in complete and final settlement of all claims of the Plaintiff which she may have against the Defendant." See Defendant's Rule 68 Offer of Judgment Dated February 1, 2000. Plaintiff timely accepted the Offer. However, a dispute subsequently arose between the parties pertaining to whether the Offer included Plaintiff's costs. Plaintiff argues that the Offer did not include costs, and Defendant argues that the Offer, by its terms, included costs in the judgment amount offered.
In Defendant's Motion, it has requested that the court enter judgment in favor of Plaintiff and against Defendant in the amount of the Offer, with the judgment specifically providing that the parties shall bear their respective attorneys fees and costs. In the alternative, Defendant has also proposed that Plaintiff submit proof of her costs recoverable under FRCP 54(d) and that Defendant submit proof of its post-Offer attorneys fees and expenses and that the amount of the judgment to be entered shall be adjusted from $50,001 to reflect the differential in the amounts submitted by the parties either to reduce or increase the judgment amount.
The court, having received the Notice of Lodging of Defendant's Rule 68 Offer of Judgment and Plaintiff's Acceptance, appropriately entered Judgment on March 7, 2000 in favor of Plaintiff in the amount of $50,001, with no mention of costs. Plaintiff then timely filed its "Memorandum of Costs; Bill of Costs Form; and Verification of Bill of Costs; [DUCivR 53-2]" (the "Bill of Costs"). Defendant timely objected to the Bill of Costs. In Defendant's Objection, it has requested disallowance of all costs and expenses for the reasons set forth its Motion and also because "the judgment entered by the clerk did not provide for the recovery of same" and because some of the items are not allowed by 28 U.S.C. § 1920.
II. DISCUSSION
FRCP 68 provides, in pertinent part:
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance with proof of service thereof and thereupon the clerk shall enter judgment.
Fed.R.Civ.P. 68. While this court might otherwise have been faced with an interesting issue, the fact that the United States Supreme Court has ruled on this issue makes this court's determination an easy one.
The United States Supreme Court has determined that an Offer of Judgment includes costs only when the costs are mentioned as being included in the amount offered. See Marek v. Chesney, 433 U.S. 1 (1985). Specifically, in Marek, the Court stated:
If an offer recites that costs are included or specifies an amount for costs, and the plaintiff accepts the offer, the judgment will necessarily include costs; if the offer does not state that costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include in its judgment an additional amount which in its discretion . . . it determines to be sufficient to cover the costs.
Marek, 473 U.S. at 6 (emphasis added); see also Knight v. Snap-On Tools Corp., 3 F.3d 1398, 1405 n. 8 (10th Cir. 1993) (noting that "Rule 68 expressly requires that the offer include, either as a part of or in addition to the sum stated, reasonable costs then accrued."); Webb v. James, 147 F.3d 617, 622 (7th Cir. 1998) (stating that "the effect of Marek is clear" in that "[i]f the offer is silent as to costs, the court may award an additional amount to cover them," and finding that trial court did not abuse its discretion in declining to find excusable neglect on the part of defendant's attorneys who claimed to be unaware of Marek); Sas v. Trintex, 709 F. Supp. 455 (S.D.N Y 1989) (although counsel argued that the offer of judgment was intended to be a total figure, including costs and attorney's fees, Marek dictated that the absence of language that an offer of judgment includes costs obliges the court to include an additional amount in the judgment as costs). Consequently, because Defendant's Offer did not state that costs were included, this court is bound by Marek to find that costs were not included in Defendant's $50,001 Offer of Judgment.
The court finds no merit in Defendant's argument that (1) Plaintiff is not entitled to costs because the judgment that was entered upon receiving the notice of acceptance of offer does not state that costs are permitted; or (2) that the judgment, after costs are determined, should be reduced by Defendant's post-Offer attorneys fees and expenses.
Having found that Plaintiff is entitled to costs under FRCP 54(d), the court must now determine whether Plaintiff's requested costs are allowable. FRCP 54(d)(1) provides:
Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as a matter of course to the prevailing party unless the court otherwise directs . . .
Fed.R.Civ.P. 54(d)(1). The word "costs" in FRCP 54(d) is a term of art, defined by 28 U.S.C. § 1920. While this court is given broad discretion in awarding costs, "`it has no discretion to award items as costs that are not set out in section 1920.'" Griffin v. Strong, 827 F. Supp. 683, 689 (D. Utah 1993) (quoting Bee v. Greaves, 910 F.2d 686, 690 (10th Cir. 1990)). Only the following items may be taxed as 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 the 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 [Title 28]; (6) Compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of [Title 28].28 U.S.C. § 1920. The court must determine whether the claimed costs were necesssarily incurred in the litigation, and if so, whether they are reasonable. U.S. Indus., Inc. v. Touche Ross Co., 854 F.2d 1223, 1245-46 (10th Cir. 1990). "`Necessarily obtained' does not mean that the materials and services obtained `added to the convenience of counsel . . . and perhaps . . . have made the task of the trial judge easier.'" Id. at 1245 (quoting Farmer v. Arabian American Oil Co., 379 U.S. 227, 235 (1964)). Rather, "the most direct evidence of `necessity' is the actual use of materials obtained by counsel or by the court." Id. at 1246. "Though use at trial by counsel or the court readily demonstrates necessity, if materials or services are reasonably necessary for use in the case even though not used at trial, the court can find necessity and award the recovery of costs." Id. The burden is on the prevailing party, not the court, to demonstrate both the reasonableness and necessity of the costs for which recovery is sought." Id. at 1245. In this case, Plaintiff has requested $11,032.93.
First, Plaintiff has requested $150 for fees of the clerk and $331 for service of summonses and subpoenas. The court finds that these costs are allowable. See Collins v. Gorman, 96 F.3d 1057, 1060 (7th Cir. 1996); Karsian v. Inter-Regional Financial Group, Inc., 13 F. Supp.2d 1085, 1087-88 (D. Colo. 1998).
Second, Plaintiff has requested $6,991.56 for "[f]ees of court reporting transcripts for case." Defendant argues that "Plaintiff has failed to demonstrate how the testimony of these witnesses was necessarily obtained for use in the case versus obtained for investigative purposes" and that "[i]n light of the fact this case was settled and not tried, this failure of proof means these costs should not be allowed." It is true that Plaintiff has failed to carry her burden of demonstrating to the court that the depositions were necessarily obtained for use in the case. See e.g., Karsian, 13 F. Supp.2d at 1088 ("if a deposition was taken simply for discovery purposes, then costs are not recoverable). It seems unduly harsh, however, to disallow all deposition fees when Plaintiff's counsel has verified that the costs were "necessarily incurred in the action," see Plaintiff's Bill of Cost at 2 and Verified Bill of Cost Form Obtained from Clerk's Office, when the court is aware that Defendants took a significant number of depositions, see Defendant's Motion for Leave to Take More Than Fifteen Depositions, for which Plaintiff obtained a transcript, and when at least some of the depositions were used in conjunction with a summary judgment motion, which was filed but not ruled upon prior to the settlement of this case. Because at least some of the depositions were obviously obtained for use in the case, the court will allow half of the deposition fees, $3,495.78.
Third, Plaintiff has asked for $164.99 for "[f]ees and disbursements for printing." The invoices provided by Plaintiff indicate that these copies were of certain medical records obtained from two hospitals and copies of subpoenaed documents that Defendant had obtained. These costs are allowable.
Fourth, Plaintiff requests $2,099.31 for "[f]ees for witnesses." Section 1821 of Title 28 defines the witness fee contemplated in section 1920(3) as follows:
(a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States . . . or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States shall be aid the fees and allowances provided by this section.
. . . .
(b) A witness shall be paid an attendance fee of $40 per day for each day's attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.28 U.S.C. § 1821(a)-(b); see also Hull v. United States, 978 F.2d 570, 571-72 (10th Cir. 1992). On the "Bill of Cost" form obtained from the court, Plaintiff indicates that there were seven individuals who were in attendance at depositions for one day each. All but one of the requested reimbursement amounts, however, exceed the $40 per day allowed under 28 U.S.C. § 1821, apparently because they were expert witnesses. The court, however, cannot award expert witness fees in excess of the section 1821 limitations. Hull, 978 F.2d at 571. Therefore, Plaintiff is entitled to $40 per day for seven witnesses, for a total of $280. In addition, one witness incurred mileage costs in the amount of $9.31, which is also recoverable under section 1821. Therefore, Plaintiff is entitled to $289.31 for witness fees.
Fifth, Plaintiff requests $177.09 for "[f]ees for exemplification and copies of papers necessarily obtained for use in the case." Plaintiff has completely failed to demonstrate what these copies were for and why they were necessary. See e.g., Grady v. Bunzl Packaging Supply Co., 161 F.R.D. 477, 479 (N.D. Ga. 1995) ("Photocopying costs for the convenience, preparation, research, or records of counsel may not be recovered."). The court has no method of determining the necessity of the copies. Thus, these fees are not allowable.
Finally, Plaintiff requests $1,118.98 for travel fees incurred by Plaintiff's attorney. These costs, however, are not allowable under § 1920.
III. CONCLUSION
For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED that Defendant's Motion for Entry of Judgment and for Other Relief is DENIED and Plaintiff is awarded costs, pursuant to FRCP 54(d), in the amount of $4,431.08.