Summary
disallowing costs of deposition transcript and docket fees
Summary of this case from McEachin v. GoordOpinion
9:97-CV-908 (FJS/GJD).
December 14, 2001
OFFICE OF MICHAEL G. KELLY, OF COUNSEL, MICHAEL G. KELLY, ESQ., Whitesboro, New York, Pro bono Trial Counsel for Plaintiff.
JESSE L. STEWART, Alden, New York, Plaintiff pro se.
OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, STEPHEN M. KERWIN, AAG, Albany, New York, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
This prisoner civil rights case was tried to a jury in Auburn, New York, beginning on October 22, 2001, and resulted in a verdict in favor of the remaining Defendants. On November 14, 2001, the Court entered judgment in favor of Defendants and closed this case. See Dkt. No. 86. On November 23, 2001, Defendants submitted a Bill of Costs, seeking $282.75 for "Fees of the court reporter for all or any part of the transcript necessarily obtained for use in the case" and $20.00 for "Docket fees under 28 U.S.C. § 1923."
On November 29, 2001, Plaintiff submitted a letter-motion objecting to the proposed Bill of Costs to the extent that it sought "costs in securing a transcript of Plaintiff's deposition[;]" i.e., the $282.75 for fees of the court reporter. See Dkt. No. 87. Plaintiff argues that Defendants are not entitled to reimbursement of these costs because "[t]he deposition in question was not reasonably necessary for use at trial for impeachment or in defense against Plaintiff's claims. Indeed, at trial Defendants made no use whatsoever of the transcript of Plaintiff's deposition testimony." See id. Plaintiff also urges the Court to deny the Bill of Costs because he is indigent. See id.
II. DISCUSSION
Rule 54(d) of the Federal Rules of Civil Procedure governs the taxation of costs against an unsuccessful litigant in federal district court. This statute provides, in pertinent part, that
Costs Other than Attorneys' Fees. 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 of course to the prevailing party unless the court otherwise directs; . . . Such costs may be taxed by the clerk on one day's notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.
Fed.R.Civ.P. 54(d)(1). The Supreme Court has construed the term "cost" in this context to mean only the specific items enumerated in 28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987). Section 1920 provides, in pertinent part, that
A judge or clerk of any court of the United States may tax as costs the following: . . . (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; . . . . . . (5) Docket fees under section 1923 of this title; . . .
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.28 U.S.C. § 1920.
As the Second Circuit recently noted, "[t]he courts of appeals have consistently interpreted this statute to permit the taxation of deposition expenses, when necessarily incurred for use of the deposition in the case." Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001) (citations omitted). Moreover, "because Rule 54(d) allows costs `as of course,' such an award against the losing party is the normal rule obtaining in civil litigation, not an exception." Id. (citation omitted). Therefore, "the losing party has the burden to show that costs should not be imposed; for example, costs may be denied because of misconduct by the prevailing party, the public importance of the case, the difficulty of the issues, or the losing party's limited financial resources." Id. (citations omitted). Generally, a court may deny costs because of the losing party's indigency, "but indigency per se does not automatically preclude an award of costs." Id. (citation omitted). Finally, if a court decides to deny costs to the prevailing party, it must set forth its reasons for doing so. See id. (citation omitted).
Since Plaintiff is incarcerated, his rights and obligations with respect to costs are governed by the federal in forma pauperis statute, 28 U.S.C. § 1915. Pursuant to § 1915(a), as amended, a district court may authorize a prisoner to bring a civil action in forma pauperis upon the prisoner's submission of an affidavit setting forth his assets and the nature of the action, as well as a certified copy of his prison account statement for the previous six months. See 28 U.S.C. § 1915(a)(1)-(2).
Section 1915(f) governs the taxation and collection of costs against an in forma pauperis inmate as follows
(1) Judgment may be rendered for costs at the conclusion of the suit or action as in other proceedings. . . .
(2)(A) If the judgment against a prisoner includes the payment of costs under this subsection, the prisoner shall be required to pay the full amount of the costs ordered.28 U.S.C. § 1915(f).
Although courts have the discretion to limit or deny costs based on indigency, "the 1996 amendments to § 1915 have undercut the ability of prisoners to appeal an award of costs on the ground of indigency." Whitfield, 241 F.3d at 273. In this regard, the court in Whitfield cited, with approval, the Sixth Circuit's holding that in light of the 1996 amendments to § 1915
The prisoner's ability to pay the costs is no longer an issue. . . . Because a prisoner can no longer challenge the assessment of fees from the district court on the grounds that the prisoner is unable to pay the assessment, if a court chooses to tax a prisoner costs, the prisoner is required to pay the assessment in full.
Id. (quoting Talley-Bey v. Knebl, 168 F.3d 884, 886-87 (6th Cir. 1999) (citations omitted)) (other citation omitted). Therefore, the court in Whitfield held that "§ 1915(f)(2)(A) restricts [its] authority to modify a district court's discretionary award of costs against a prisoner proceeding in forma pauperis on the ground that the prisoner is unable to pay." Id.
Accordingly, based upon the reasoning in Whitfield, the Court concludes that Plaintiff's indigency does not preclude the Court from allowing Defendants' Bill of Costs.
On the other hand, Plaintiff's argument that the Court should disallow the Bill of Costs because the transcript of the deposition was not "necessarily obtained for use of the deposition in the case" has merit. Attached to Defendants' Bill of Costs is a page entitled "Itemization of Expenses." Under the heading of "Other Costs" is the statement "Depositions (used for motion or trial; filed in court; receipts or invoices attached)." A review of the file, however, indicates that this statement is not entirely accurate. Although Defendants filed the transcript of Plaintiff's deposition with the Court as part of their pretrial submissions, see Dkt. No. 78, they did not use the deposition transcript to support a motion nor does it appear that they used it at trial.
The only substantive motion filed in this case was Defendants' motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. Defendants did not rely upon the transcript of Plaintiff's deposition to support their motion nor would such reliance have been appropriate because on a motion for judgment on the pleadings the Court cannot consider matters outside the pleadings. Furthermore, as Plaintiff's counsel points out, Defendants did not make use of the transcript of Plaintiff's deposition at any time during the trial. Under these circumstances, therefore, the Court cannot find that Defendants "necessarily" obtained a transcript of Plaintiff's deposition for use in the case.
Accordingly, the Court grants Plaintiff's motion to disallow Defendants' Bill of Costs with respect to the $282.75 incurred for "Fees of the court reporter for all or any part of the transcript necessarily obtained for use in the case."
Finally, with respect to Defendants' request for docket fees, § 1923 provides, in pertinent part, that
Attorney's . . . docket fees in courts of the United States may be taxed as costs as follows:
$20 on trial or final hearing (including a default judgment whether entered by the court or by the clerk) in civil, criminal, or admiralty cases, . . .28 U.S.C. § 1923.
There is very little case law construing the meaning of the term "attorney's docket fees" for purposes of § 1923. Black's Law Dictionary defines "docket fees" to mean "[a] fee charged by a court for filing a claim." Black's Law Dictionary 629 (7th ed. 1999). In a case decided in 1952, the Second Circuit concluded, without explanation, that "[t]he docket fee is an attorney's fee as defined by 28 U.S.C.A. § 1923(a) . . ." McConville v. United States, 197 F.2d 680, 684 (2d Cir. 1952) (declining to award the plaintiff an attorney's docket fee because such an award was excluded from taxation of allowable costs under 28 U.S.C. § 2412). In a recent case, the prevailing party, who was the defendant, requested docket fees under § 1923. In denying this request, the court stated:
28 U.S.C. § 1923 expressly provides for the taxation of docketing fees. In the usual case, plaintiffs pay docketing fees as part of the cost of filing a case. The court is confused as to why Defendant incurred such fees, especially in light of Defendant's failure to provide any receipts documenting the payment of such fees.
Frahm v. The Equitable Life Assurance Soc. of U.S., No. 93 C 0081, 2000 WL 988526, *2 (N.D. IL July 18, 2000) (emphasis added).
Like the court in Frahm, this Court is confused as to why Defendants would have incurred any docket fees in this case. Therefore, absent any documentary proof that Defendants paid such fees, the Court disallows Defendants' Bill of Costs with respect to their request for attorney's docket fees under § 1923.
III. CONCLUSION
After carefully considering the parties' submissions and the applicable law, and for the reasons stated herein, the Court hereby
ORDERS that Plaintiff's motion for an Order disallowing Defendants' Bill of Costs is GRANTED; and the Court further
ORDERS that the Clerk of the Court is not to tax costs in this case.
IT IS SO ORDERED.