Summary
stating that it is reasonable for a defendant to depose a plaintiff in a lawsuit
Summary of this case from Verdin v. Autozone Texas, L.P.Opinion
No. 3-99-CV-0478-L
October 31, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendants Mark Raines and Steve Rooney have submitted a bill of costs as the prevailing parties in this civil rights action. Plaintiff objects to two cost items: (1) $1,043.60 in court reporter fees for his deposition; and (2) $185.00 in travel expenses incurred by Alvin Wayne Berry, an expert retained by defendants. For the reasons stated herein, plaintiffs objections should be overruled and these costs should be allowed.
I.
Plaintiff Donald A. Tittle, Jr., a Dallas attorney, was arrested on felony charges of tampering with physical evidence based on information provided by two Addison police officers, Defendants Raines and Rooney. Several months later, plaintiff was no-billed by a Collin County grand jury. Plaintiff then sued defendants and others for federal civil rights violations and malicious prosecution. By order dated August 29, 2002, the district court granted summary judgment in favor of defendants and dismissed the case with prejudice. Tittle v. Raines, 2002 WL 2003181 (N.D. Tex. Aug. 29, 2002). Defendants now seek $2,410.58 in taxable court courts as the prevailing parties in this action.
II.
A prevailing party is entitled to recover its costs "unless the court otherwise directs." FED. R. CIV. P. 54(d). Taxable costs include: (1) fees paid to the clerk and marshal; (2) court reporter fees for all or part of a deposition transcript; (3) witness fees and related expenses; (4) printing costs; and (5) fees for copies of papers necessarily obtained for use in the case. See 28 U.S.C. § 1821 1920. A district court may decline to award statutory costs but may not award costs omitted from the statute. 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); Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993), cert. denied, 114 S.Ct. 1303 (1994).
Defendants originally submitted a cost bill in the amount of $3,685.32. These costs include: (1) $135.30 for a copy of Rooney's deposition; (2) $101.00 for a copy of Raines' deposition; (3) $180.87 for a copy of Berry's deposition; (4) $1,728.00 for an expedited copy of plaintiff's deposition; (5) $185.00 in travel expenses incurred by Berry for attending his deposition; and (6) $1,283.05 for copies of papers necessarily obtained for use in the case. After plaintiff filed his objections, the parties reached agreement on all but two cost items: (1) $1,043.60 in court reporter fees for plaintiffs deposition; and (2) $185.00 in travel expenses incurred by Berry. The court will address each item in turn.
Defendants agreed not to seek recovery of an expedited fee for obtaining plaintiff's deposition transcript and reduced their claim for copies of documents to $764.31. (Jt. Stat. Rep. at 2, ¶ C).
A.
Defendants seek $1,043.60 in court reporter fees for taking plaintiffs deposition. A prevailing party is entitled to recover the costs of taking, transcribing, and reproducing depositions that are "necessarily obtained for use in the case." 28 U.S.C. § 1920 (2); see also Coates, 5 F.3d
at 891. Whether transcripts are "necessarily obtained" for use in the case is a question of fact for the court. Id. The relevant inquiry is whether the deposition reasonably seemed necessary at the time it was taken. Manildra Milling Corp. v. Ogilvie Mills, Inc, 878 F. Supp. 1417, 1427 (D. Kan. 1995), aff'd, 76 F.3d 1178 (Fed. Cir. 1996). See also 10 C. WRIGHT A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2676 at 424 (3d ed. 1998). Depositions used in support of a motion for summary are necessarily obtained for use in the case. See Fitchett v. Stroehmann Bakeries, Inc., 1996 WL 47977 at *3 (E.D. Pa. Feb. 6, 1996). In assessing a motion for summary judgment, the court conducts a "careful and thorough examination of the record to assure that no issues of fact remain that would make summary judgment inappropriate. Depositions are useful in performing that examination." Jeffries v. Georgia Residential Finance Auth., 90 F.R.D. 62, 64 (N.D. Ga. 1981), aff'd, 678 F.2d 919 (11th Cir.), cert. denied, 103 S.Ct. 302 (1982).
Plaintiff suggests that his deposition was not "necessarily obtained for use in the case" because the court focused on the subjective beliefs of defendants in granting summary judgment and he would have been available to testify live at trial. (Jt. Stat. Rep. at 3-4, ¶ E(1)(A)). This argument ignores both the record and the legal standard governing whether such costs should be allowed. Not only did defendants rely on excerpts of plaintiffs deposition in support of their motion for summary judgment, but plaintiff provided the court with 108 pages of his own deposition testimony in opposition to defendants' motion. ( See Def. MSJ App., Exh. 15 at 117-43; Plf. MSJ App., Exh. A at 1-108). Apparently, both sides thought this deposition was necessary to the determination of the summary judgment motion. Moreover, even if the court did not rely on plaintiff's deposition in ruling on defendants' motion for summary judgment, the relevant inquiry is whether the deposition "reasonably seemed necessary at the time it was taken." Manildra Milling, 878 F. Supp. at 1427. Surely, it is reasonable for a defendant to depose the plaintiff in a lawsuit. The fact that defense counsel wanted this deposition to fully understand the factual basis of plaintiffs claims does not mean that the deposition was taken primarily for discovery or investigative purposes. Cf. Herman v. Pronto Courier Service, 1999 WL 325493 at *3 (N.D. Tex. May 10, 1999) (Kaplan, M.J.) (deposition was taken primarily for investigative purposes where deponent was not listed as potential witness by either party). Accordingly, this cost item should be allowed.
B.
Defendants also seek $185.00 in costs for their expert witness, Alvin Wayne Berry, to travel from San Antonio to Dallas for his deposition. While there may be some question whether the travel expenses of an expert witness are taxable court costs under 28 U.S.C. § 1920, this cost item is clearly recoverable under 42 U.S.C. § 1988. See Ross v. Giles, 1990 WL 166532 at *4 (S.D. Ohio Apr. 5, 1990), citing Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 633 (6th Cir. 1979), cert. denied, 100 S.Ct. 2999 (1980). Plaintiff does not argue that $185.00 for a round trip airline ticket from San Antonio to Dallas is excessive or otherwise unreasonable. Therefore, this cost item should be allowed.
Section 1988 authorizes the trial court to award reasonable attorney's fees, including expert fees, to the prevailing party in a civil rights action. See 42 U.S.C. § 1988 (b) (c). Disbursements that are not specifically authorized by statute as taxable costs, such as travel expenses of a witness, may be awarded under section 1988. See Ross v. Giles, 1990 WL 166532 at *4 (S.D. Ohio Apr. 5, 1990), citing Population Services International v. Carey, 476 F. Supp. 4 (S.D.N.Y. 1979) and Dasher v. Mutual Life Insurance Co., 78 F.R.D. 142 (S.D. Ga. 1978).
RECOMMENDATION
Plaintiff's objections to defendants' bill of costs should be overruled. The district clerk should be directed to tax costs against plaintiff in the amount of $2,410.58 in accordance with Rule 54(d)(1) of the Federal Rules of Civil Procedure.