Opinion
Case No: 8:02-cv-736-T-26EAJ.
September 17, 2004
ORDER
This cause comes before the Court on Plaintiff's Bill of Costs (dkt. 373) and Defendants' Objections thereto (dkt. 374).
Prevailing parties are entitled to receive costs under Rule 54(d), Federal Rules of Civil Procedure. Although Plaintiff believes that this matter is not yet fully resolved under Rule 54, it submits it has incurred the following costs and requests the Clerk to tax them:
Fees of the Clerk $150.00 Fees for the service of summons and subpoenas $4,208.60 Fees of court reporters $30,258.73 Fees for witnesses $1,771.40 Fees for exemplification and copies of papers $37,568.21 Compensation of interpreters $90.00 Federal Express $1,814.83 Long Distance Telephone Charges $1,004.71 Total $76,866.48
A court may only tax costs as authorized by statute. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987). 28 U.S.C. § 1920 specifies the items that are properly taxed against a nonprevailing party. This Section provides:
A judge or clerk of any court of the United States may tax as costs the following:
(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 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 prevailing party is entitled to recover reasonable and necessary expenses "that are normally itemized and billed in addition to the hourly rate if those expense are reasonable in amount." Bee v. Greaves, 910 F.2d 666 (10th Cir. 1990);see also Halderman v. Pennhurst State Hospital School, 855 F. Supp. 733 (E.D. Pa. 1994) (excessive copying charges disallowed). Moreover, costs must not only be reasonable in amount but necessary for the maintenance of the action. Desisto College v. Town of Howey-In-The-Hills, 718 F. Supp. 906 (M.D. Fla. 1989) (costs of photocopies for counsel's convenience not compensable). In light of the statutory provisions and pertinent case law, some of Plaintiff's submitted costs will be allowed while others must be stricken as out-of-pocket expenses or attorneys' fees.
The Court will allow taxation of the $150.00 filing fee of the Clerk of Court, pursuant to 28 U.S.C. § 1920(1). Likewise, the Court will allow taxation of Plaintiff's court reporter fees in the amount of $30,258.73, witness fees in the amount of $1,771.40, and court interpreter fees in the amount of $90.00, pursuant to 28 U.S.C. §§ 1920(2), (3), and (6) respectively. Although Defendants make the vague and broad objection that "many of these charges incurred by American Home were for court reporters, deposition transcripts, witness fees, and other charges related to Plaintiff's misguided and ultimately irrelevant quest for massive amounts of discovery and that none of these depositions were submitted in support of summary judgment," the Eleventh Circuit Court of Appeals has rejected any blanket rule that a deposition must be admitted in evidence in order to be recoverable. See Murphy v. City Of Flagler Beach, 761 F.2d 622, 631 (11th Cir. 1985). As such, the focus of this Court in reviewing Plaintiff's court reporter, witness, and court interpreter costs is on whether the discovery could have been seen by Plaintiff as reasonably necessary at the time it was conducted. See Morrissey v. County Tower Corp., 568 F. Supp. 980, 982 (E.D. Mo. 1983); see also Barber v. Ruth, 7 F.3d 636, 644 (7th Cir. 1993) (transcripts need not be absolutely indispensable in order to provide basis for award of costs; it is enough that they are reasonably necessary);United States Equal Employment Opportunity Comm'n v. WO, Inc., 213 F.3d 600, 620-21 (11th Cir. 2000) (taxation of deposition costs is authorized by the statute that authorizes the taxing of fees of a court reporter for a stenographic transcript necessarily obtained for use in a case); Haroco, Inc. v. American Nat. Bank and Trust Co. of Chicago, 38 F.3d 1429, 1442 (7th Cir. 1994) (award of costs for witnesses who were subpoenaed and given notices of depositions but whose depositions were never taken was proper; subpoenaed witnesses were compensated for their readiness to testify at depositions). Furthermore, the Court enjoys wide latitude in its determination of what is reasonable and necessary for use in a case. Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 337 (5th Cir. Unit B 1981).
Plaintiff presents the Court with an itemized list of all costs it incurred and, for each cost, Plaintiff states the date on which the cost was incurred, the payee, the amount, and a brief description. There is no requirement for Plaintiff to submit receipts, bills, or invoices substantiating each of its costs. Defendants' Objections fail to adequately explain why Plaintiff could not have viewed its court reporter, witness, and court interpreter costs as reasonably necessary at the time that they were incurred. (See dkt. 374, p. 4.) In fact, Defendants' Objections offer little more than hindsight and a string of general propositions taken from case law discussing the recovery of various types of costs. Defendants fail to make any effort to go through Plaintiff's itemized list of costs and specifically articulate why each objectionable cost was either unreasonable or unnecessary. The Court finds that Plaintiff's itemization of these particular costs is sufficient and the costs will, therefore, be taxed.
Taxation of the costs for fees for the service of summons and subpoenas is also appropriate under 28 U.S.C. §§ 1920(1) and 1921. However, § 1920 makes no provision for postal, let alone Federal Express or courier, charges and thus, taxation of any costs showing "Federal Express" or a courier as the payee will not be allowed. See Cuban Museum of Arts Culture v. City of Miami, 771 F. Supp. 1190, 1193 (S.D. Fla. 1991) (disallowing expenditures for messengers and Federal Express, except for messenger charge for filing complaint and temporary injunction motion); Loewen v. Turnipseed, 505 F. Supp. 512, 518 (N.D. Ms. 1981) (disallowing postage and private express mail expenses because such costs are noncompensable law firm overhead); Tang How v. Edward J. Gerrits, 756 F. Supp. 1540, 1545 (S.D. Fla. 1991) (disallowing courier, express mail, and facsimile charges not shown to be necessary); Hollenbeck v. Falstaff Brewing Corp., 605 F. Supp. 421 (E.D. Mo. 1984), aff'd, 780 F.2d 20 (8th Cir. 1985) (plaintiff's request for costs to cover long-distance telephone calls, long-distance and local delivery service, office expenses, miscellaneous and postage expenses would be denied, as they are not "costs" as that term is used in statute, but are in fact, out-of-pocket expenses). Consequently, Plaintiff's submitted costs for the service of summons and subpoenas will be taxed only in the amount of $3,633.60, rather than $4,208.60. The costs identifying "Federal Express" as the payee and the charge description as document delivery or filing, totaling $1,814.83, are stricken in their entirety. Likewise, because § 1920 contains no provision for the recovery of telephone charges, all costs listing a telephone service provider as the payee, totaling $1,004.71, are stricken in their entirety.
While many of the costs for service of subpoenas, summons, or other process identify a private process server as the payee, there are some that list "Federal Express" as the payee with a charge description as service of process. Because the charges were not further described or substantiated, the Court will strike the "Federal Express" charges.
Finally, Plaintiff submits a bill of costs for exemplification and copy fees in the amount of $37,568.21. These costs on their face are excessive. Copies attributable to discovery, copies of pleadings, correspondence, documents tendered to the opposing party, copies of exhibits, and documents prepared for the Court's consideration are recoverable. DeSisto College, Inc. v. The Town of Howey-In-The-Hills, 718 F. Supp. 906, 913 (M.D. Fla. 1989) (citation omitted). Copies obtained only for the convenience of counsel are not recoverable. See id. Extra copies of filed papers, correspondence, and copies of cases are considered obtained only for the convenience of counsel. Id. Plaintiff makes no effort in its itemization to distinguish recoverable, or necessarily obtained, copy charges from out-of-pocket, or "for their own convenience," copy expenses. The party seeking recovery of photocopying costs must come forward with evidence showing the nature of the documents copied, including how they were used or intended to be used in the case. Helms v. Wal-Mart Stores, Inc., 808 F. Supp. 1568, 1571 (N.D. Ga. 1992).
A close examination of Plaintiff's itemization of copy costs reveals, in many instances, charges that are based on either an excessive per page cost or a description that does little to show that the copied pages were reasonable and necessary, rather than obtained solely for the sake of convenience. After careful review of each copy charge, the Court determines that taxation of only $7,568.21 in exemplification and copy costs should be allowed.
ACCORDINGLY, it is ORDERED AND ADJUDGED:
The Court rejects $33,394.54 of the $76,866.48 in costs sought for Plaintiff's counsel's expenses in the Bill of Costs (dkt. 373) as unreasonable or unjustified charges. Therefore, Plaintiff shall be reimbursed in the amount of $43,471.94 for expenses associated with this litigation.
The Clerk shall tax costs in accordance with this Order.