Summary
holding that mediation fees are not compensable under Section 1920
Summary of this case from Johnson v. Parkwood Behavioral Health Sys.Opinion
Civil No. 3:98-CV-0711-L.
Filed March 31, 2000.
MEMORANDUM OPINION AND ORDER
Prevailing Defendants in this employment discrimination action have submitted their Bill of Costs for $20,593.89. Plaintiff objects to a portion of these costs. The briefing on this dispute is complete, and this issue is now ripe for review.
Unless the Court otherwise directs, costs are to be awarded to a prevailing party as a matter of course pursuant to Rule 54(d) of the Federal Rules of Civil Procedure. The express provisions of 28 U.S.C. § 1920, however, limit the Court's discretion in taxing costs against an unsuccessful litigant. 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). That statute enumerates 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 interpretations services under § 1828 . . .;28 U.S.C. § 1920 (West 1994). A district court may decline to award costs listed in the statute, but may not award costs omitted from the statute. Crawford Fitting Co., 482 U.S. at 441-42, 107 S.Ct. at 2497 .
Plaintiff lodges the following objections to the Defendants' Bill of Costs:
1) Plaintiff objects to videographer fees paid for video-taped depositions;
2) Plaintiff objects to Defendants' costs for photocopies; and
3) Plaintiff objects to an award of mediation fees.
Each of Plaintiff's objections are considered, in turn, below.
1. Videographer Fees
Defendants request reimbursement for $2,576.50 in fees paid for the video-taped depositions of Plaintiff and Wendy Jackson. Plaintiff objects, contending that video technician fees are not recoverable under 28 U.S.C. § 1920. Pl.'s Mot. at 1.
The cost of a deposition is taxable if the court finds that "all or any part [of the deposition] was necessarily obtained for use in the case." Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1553 (citations and internal quotations omitted); See 28 U.S.C. § 1920 (2) (West 1994). A deposition need not be introduced into evidence for it to be considered necessary for a case; "as long as there is a reasonable expectation that the deposition may be used for trial preparation, it maybe included in costs." Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 536 (5th Cir. 1999). The party seeking the costs has the burden of justifying the necessity of obtaining a deposition. Fogelman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991).
Defendants contend that they may recover the costs for video-taped depositions, relying on this Court's decision in Dodge v. Hunt Petroleum Corp., C.A. No. 3:97-CV-0810-L, 1999 WL 1039710 (N.D. Tex. Nov. 15, 1999), and the cases cited therein. Although such costs may be recoverable under § 1920(2), Defendants must nonetheless show that the costs were necessary for this case. Cherry v. Champion Int'l Corp., 186 F.3d 442, 449 (4th Cir. 1999); Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1477-78 n. 4 (10th Cir. 1997); See 28 U.S.C. § 1920 (2) (West 1994).
As noted by Defendants in their brief, Plaintiff does not object to their request for the costs of Plaintifs and Wendy Jackson's oral depositions. See Defs.' Resp. at 3-4. These costs are proper under § 1920(2) and will, therefore, be awarded to Defendants. Defendants, however, also request the costs for videotaping these depositions. Yet, they have failed to show why it was necessary to videotape the depositions in addition to having them transcribed. Defendants argue that they intended to use the videotaped depositions at trial, but § 1920(2) requires more. See Cherry, 186 F.3d at 449 ("The concept of necessity for use in the case connotes something more than convenience or duplication to ensure alternate methods for presenting materials at trial."). Absent a showing that both an ordinary transcript and videotape of these depositions were necessary, Defendants may not recover the requested videographer fees. Cherry, 186 F.3d at 449 (noting that costs for both transcribing and videotaping a deposition would not be allowed unless both costs were "necessarily obtained for use in the case."); Tilton, 115 F.3d 1477-78 n. 4 (10th Cir. 1997). Accordingly, $2,576.50 will be subtracted from Defendants' Bill of Costs.
2. Photocopy Costs
Defendants have requested an award of $12,360.12 in photocopy charges. Plaintiff challenges this amount on the grounds that she cannot determine from Defendants' Bill of Costs how the figure was calculated, whether it is accurate, and whether the copies were necessary for use in this case. Plaintiff also specifically objects to an award of costs for copying trial exhibits. Pl.'s Mot. at 1-2.
Before a district court can properly tax costs for photocopies, it must make a determination that the copies being requested "were necessarily obtained for use in litigation." Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994) (citing Studiengesellschaft Kohle v. Eastman Kodak, 713 F.2d 128, 133 (5th Cir. 1983)). The party seeking the costs must offer proof of their necessity. Id . (citing Fogelman, 920 F.2d at 286).
In response to Plaintiff's complaints, Defendants have reduced their request for copy costs to $3,788.29. This amount includes charges for copies of pleadings, motions, and responses to Plaintiff's discovery requests that were required to be filed with the Clerk and/or served on Plaintiff pursuant to the Local Rules of this District and the Federal Rules of Civil Procedure. Defs.' Resp. at 6-9 and Ex. A. The Court, therefore, finds that these copies were necessarily obtained for use in this case and, consequently, the costs are awarded to Defendants. See Goluba v. Bruswick Corp., 139 F.R.D. 652, 655 (E.D. Wis. 1991).
Also included in the total amount of copy charges is $322.00 for a copy of Plaintiff's deposition, which, according to Defendants, was provided to their expert to review in connection with the preparation of his expert report. Defs.' Resp. at 6. Because this copy was necessarily obtained for use in this case, Defendants may recover the $322.00.
With respect to the costs incurred for copying trial exhibits, those costs are not properly taxable without the Court's pretrial approval of the exhibits. Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 335 (5th Cir.), cert denied, 516 U.S. 862, 116 S.Ct. 173, 133 L.Ed.2d 113 (1995). Defendants have filed to show in their brief that the Court approved the production of the trial exhibits at issue, thus, they cannot recover those costs ($305.27). Subtracting the costs of the trial exhibits from Defendants' total request in copy charges leaves an amount awarded to Defendants totaling $3,483.02.
3. Mediation Fees
Defendants request $450.00 in costs for mediation. Plaintiff objects contending that such costs are not taxable. The Court agrees that these costs are not compensable. See Scribner v. Waffle House, Inc., No. 3-91-CV-2667-R, 1998 WL 47640 at *1 (N.D.Tex. February 2, 1998) (Buchmeyer, C.J.). Defendants' costs, therefore, will be further reduced by the $450.00 requested for mediation fees.
Conclusion
In sum, Defendants requests in their Bill of Costs, filed December 9, 1999, are granted in part and denied in part. The Court finds that Defendants are entitled to recover the following costs pursuant to Rule 54(d): $200.00 for subpoenas; $4,842.40 for oral depositions; $364.87 for hearing transcripts; and $3,526.55 for copy costs. These amounts total $8,933.82. These costs are to be taxed against the Plaintiff in accordance with Rule 54(d).