Summary
stating that the court was unable to locate a rule limiting the time period to file objections to a bill of costs and concluding that objections may be filed within a reasonable time after the bill of costs are submitted
Summary of this case from Donner v. Lawrence Paper CompanyOpinion
Case No. 97-4101-SAC.
November 26, 2001
MEMORANDUM AND ORDER
This case comes before the court on defendant Debra J. Snow's "objection to award in bill of costs." (Dk. 159). The court interprets that motion as a motion to retax costs.
The judgment entered in this case on October 20, 2000, included an order that defendants recover their costs from plaintiff. (Dk. 146). On December 19, 2000, defendant Snow submitted her bill of costs in the amount of $5,565.01. (Dk. 151). Plaintiff filed an objection to that bill of costs on May 24, 2001, (Dk. 154), and defendant Snow replied to plaintiff's objection on June 12, 2001 (Dk. 155). Costs were then taxed against the plaintiff in the amount of $3,435.51 in favor of defendant Snow on September 19, 2001. (Dk. 156). Thereafter, defendant Snow sought and received an extension of time in which to file a motion for the retaxing of costs (Dk. 157, 158), and timely filed the instant motion. (Dk. 159).
Defendant first alleges that plaintiff's objection to defendant's original bill of costs was untimely because it was not filed within 10 days thereof, as required by D.Kan. R. 206. The court believes that defendant intends to refer to Local Rule 7.1, which prior to January 1, 2000, was Rule 206(a) and (b). That rule requires "a party opposing a motion other than one to dismiss or for summary judgment" to file its written response "within ten days of service of the motion upon it." D.Kan. R. 7.1(b) (captioned "Responses and Replies to Motions").
The ten day rule is inapplicable to an objection to a bill of costs for the simple reason that a bill of costs is not a motion, and is not substantially similar to a motion. By its terms, a motion is directed to and requires some action by the court. By contrast, a bill of costs is directed to and requires action only by the clerk of the court. The present issue is thus not governed by D.Kan. R. 7.1, which relates to motions, but by D.Kan. R. 54.1, which relates to "Taxation and Payment of Costs."
The relevant rule provides a specific time in which the party entitled to recover costs shall file a bill of costs, and a specific time in which a motion to retax costs shall be filed. See D.Kan. R. 54.1. No time period is established in the rule, however, for filing objections to a bill of costs. Defendant has not directed the court's attention to any other relevant rule limiting the time in which an objection to a bill of costs may be filed, and the court knows of none. See Fed.R.Civ.P. 54(d)(1) (establishing 5 day rule for motion to retax costs). Because no time limits have been established for the filing of objections to a bill of costs, such objections may be filed within a reasonable period of time after the bill of costs.
Plaintiff's objection to the bill of costs was not filed until May 24, 2001, over five months after the bill of costs was filed. Although this period of time may appear to be unreasonably long at first blush, the court understands that the clerk of the court had some communications with the parties during that period of time. Importantly, defendant has not shown that it has suffered or is likely to suffer any prejudice from the delay. Under these circumstances, the court will not find that the objection to the bill of costs was untimely, and declines defendant's invitation to decide its motion to retax costs or its original bill of costs as though it were uncontested.
Defendant states that "the Objection to Bill of Costs filed by Plaintiff should therefore be considered and decided as an uncontested motion." (Dk. 159, p. 2-3). The court presumes that defendant errs in so stating, and intends for the court to deem defendant's bill of costs, or motion to retax costs, as uncontested instead.
The court will thus address the merits of the motion. Fed.R.Civ.P. 54(d)(1) authorizes the taxing of costs "to a prevailing party unless the court otherwise directs." Section 1920 of Title 28 of the United States Code "defines the term `costs' as used in Rule 54(d). Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441(1987).
Title 28 U.S.C. § 1920 outlines taxable costs by category:
(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 witness;
(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, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
A trial court has no discretion to award costs not listed in § 1920. Crawford Fitting, 482 U.S. at 441-42. Defendant, as the prevailing party, has the burden to show that the costs sought to be taxed fall within the categories of § 1920. See Dutton v. Johnson County Bd. Of County Com'rs, 884 F. Supp. 431, 436 (D.Kan. 1995). The court, however, must carefully scrutinize the amount of such costs to ensure its reasonableness. Griffith v. Mt. Carmel Medical Center, 157 F.R.D. 499, 502 (D.Kan. 1994). The final award of costs rests within the sound discretion of the court. Dutton, 884 F. Supp. at 436 (citing Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 232-33 (1964)).
Costs of Service of Process/Subpoenas
Defendant seeks fees it represents are "associated with the depositions taken in this case." (Dk. 155, p. 9). Plaintiff objects to these fees, specifically to the amount of fees which represent service upon the plaintiff, who would have appeared pursuant to the Notice to Take Deposition. (Dk. 154, p. 3). The court will not award fees for service of a party in the absence of a showing that such party refused to voluntarily appear, or that the movant reasonably believed that for some other reason, formal service was necessary. Accordingly, defendant's fees in this category will be reduced by $70.00 for the two times defendant incurred a $35.00 fee for serving the plaintiff, reducing the permissible costs in this category to $210.00.
Court Reporter / Transcript Fees
Defendant seeks the full amount of the requested award for reporter fees and transcripts, i.e., $ 2463.51, in lieu of the $ 2448.51 awarded.
For fees of the court reporter for the stenographic transcript and for exemplification and copies of papers, items taxable under subparagraphs (2) and (4) of § 1920, the movant's burden includes showing that the items for which costs were incurred were "necessarily obtained" for use in this case. If the prevailing parties carry this burden, a presumption arises in favor of taxing those costs. See U.S. Industries, Inc. v. Touche Ross Co., 854 F.2d 1223, 1245 (10th Cir. 1988). A party may be awarded costs for copying a deposition when it can make an adequate showing that the copy was reasonably necessary to defend the plaintiffs' claim, and for purposes other than convenience of counsel in investigating the facts of the case. Morrissey v. County Tower Corp., 568 F. Supp. 980, 983 (E.D.Mo. 1983). "The trial court has great discretion to tax the cost of depositions if it determines that all or any part of the deposition was necessarily obtained for use in the case, even if not actually used in the trial itself." Green Const. Co. v. Kansas Power Light Co., 153 F.R.D. 670, 677 (D.Kan. 1994).
Whether transcripts are necessarily obtained for use in the case is a question of fact for the court. U.S. Industries, 854 F.2d at 1245. "Necessarily obtained" does not mean merely that the material added to the convenience of counsel or made trial easier for the court. Id. Actual use by counsel or the court, on the other hand, is not required. Id. at 1246. "The court must determine whether the depositions reasonably seemed necessary at the time they were 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).
Defendant provides only conclusory statements in an affidavit of counsel that it necessarily incurred the costs of the transcripts. (Dk. 156, Exh. B, affidavit). When confronted with objections, a party must present more than conclusory statements that the cost was necessary. See Green Const.Co., 153 F.R.D. at 677 and n. 8. Here, the clerk's decision to disallow defendant $15.00 represents a reduction for the cost of one condensed transcript. Defendant has not shown that such a transcript was reasonably necessary at the time, and the court doubts that defendant could do so, given the fact that defendant also obtained an original and a copy of the same transcript. The $15.00 reduction shall be made, and only $2448.51 shall be awarded in this category.
Witness Fees
Defendant challenges a reduction of $45.00 from the fees defendant incurred in paying witness fees. Plaintiff objects to all witness fees, but particularly to those incurred for the plaintiff herself. The records reveal that on two occasions, defendant paid $45.00 to the plaintiff for "witness fee and mileage." (Dk. 156, Exh. E.) No further explanation is given as to the purpose of this fee, or as to why it was necessary to pay plaintiff to appear for her appearance in her own case. The court shall therefore reduce the bill of costs for witness fees by the amount paid to the party plaintiff, which amount is $90.00. Thus, instead of the $315.00 sought, defendant shall be awarded $225.00.
"Other costs"
Postage/Delivery
The court also declines to tax postage expenses. "Federal courts in Kansas deny taxation of postage costs based upon a lack of statutory authority in § 1920." Ortega v. IBP, Inc., 883 F. Supp. 558, 562 (D.Kan. 1995). "Postage expenses do not fall within section 1920 and, therefore, cannot be taxed to plaintiff." Diskin v. Unified School Dist. No. 464, No. Civ.A. 95-2244-EEO, 1997 WL 161943, at *2 (D.Kan. Mar.28, 1997). Defendant's bill of costs was and is therefore reduced by the amount of $15.75 for "FedEx" transportation of a deposition transcript to defendant's own expert witness. (Dk. 156, Exh. C, p. 1).
Expert Witness
Defendant seeks the costs of Dr. Hutchinson, who charged $2,018.75 for various pretrial services. Plaintiff contests the taxing of this bill. The Supreme Court in Crawford Fitting, 482 U.S. at 445, held that "absent explicit statutory or contractual authorization for the taxation of the expenses of a litigant's witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920." The Court continued, "[T]he inescapable effect of these sections in combination is that a federal court may tax expert witness fees in excess of the $[40]-per-day limit set out in § 1821(b) only when the witness is court-appointed." Dr. Hutchinson was not court appointed.
In the absence of specific agreement between the parties, it is well settled that expert witnesses are entitled only to the regular statutory witness fees as part of taxed costs. Cleverock Energy Corp. v. Trepel, 609 F.2d 1358,1363 (10th Cir. 1979), citing Henkel v. Chicago, St. Paul, Minneapolis Omaha Ry. Co., 284 U.S. 444 (1932); 10 C. Wright A. Miller, Federal Practice and Procedure § 2678, at 236-37 (1973). No specific agreement has been shown here. The Tenth Circuit has specifically held that the prevailing party is not entitled to excess fees for experts. Euler v. Waller, 295 F.2d 765, 766 (10th Cir. 1961). See also Union Carbide Carbon Corp. v. Nisley, 300 F.2d 561, 586-87 (10th Cir. 1961).
Defendant has not sought expert fees as witness fees, and the court cannot determine from the documents provided by the defendant that any of the amounts charged by the expert are for the expert's deposition or other court appearance, for which witness fees could be awarded. See § 1821(a). Instead, the expert's records indicate that the time was spent reviewing records, writing reports, and in "miscellaneous time." (See Dk. 156, Exh. C, bills from Dr. Hutchinson.) Accordingly, Dr. Hutchinson's fees shall not be awarded. This reduces the amount of "other costs" sought by defendant from $2,459.50 to $425.00, which represents payment of $50.00 to Dr. Challa for plaintiff's medical report, and of $375.00 to Dr. Albott, plaintiff's treating physician. $425.00 shall be allowed in this category.
The remainder of costs sought by the defendant, i.e., $47.00 for copies of papers, is appropriate. Defendant's motion to retax costs is thus granted in part and denied in part, and defendant shall be awarded costs totaling $3355.51.
IT IS THEREFORE ORDERED THAT defendant's motion to retax costs (Dk. 159) is denied. Pursuant to the terms of this memorandum, The parties shall submit to the clerk within twenty (20) days of the date of this order a revised bill of costs, reflecting the specific reductions made in this order.
IT IS SO ORDERED.