Opinion
EP-03-CA-0347-FM.
September 9, 2005
Memorandum Opinion and Order Awarding Costs
Before the Court is the "Bill of Costs" [Rec. No. 49], "Plaintiff's Motion to Review Taxation of Costs" [Rec. No. 50] and "Defendant's Response to Plaintiff's Motion to Review Taxation of Costs" [Rec. No. 52] filed in the above-captioned cause. After carefully reviewing the record, arguments and authorities, the Court is of the opinion that "Plaintiff's Motion to Review Taxation of Costs" [Rec. No. 50] should be GRANTED in PART and DENIED in PART for the following reasons:
Defendant as the prevailing party in this case is permitted to recover costs. See FED. R. CIV. P. 54(d). Plaintiff argues that the Court should review the costs taxed by the clerk associated with: 1) expert witnesses fees; 2) bringing Dr. Leopold to trial; 3) trial transcripts; 4) witness depositions; and 5) copying costs.
The award of costs is primarily controlled by statute. 28 U.S.C. § 1920 authorizes this court to tax costs and permits costs for the:
(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.28 U.S.C. § 1920.
Moreover, 28 U.S.C. § 1920(3) should "be read in conjunction with section 1821 which, in effect, defines the taxable fees and disbursements associated with witnesses." Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994); Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 440-41 (1987). 28 U.S.C. § 1821 states in relevant part:
(a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States, or before a United States Magistrate Judge, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances provided by this section.
(2) As used in this section, the term "court of the United States" includes, in addition to the courts listed in section 451 of this title, any court created by Act of Congress in a territory which is invested with any jurisdiction of a district court of the United States.
(b) A witness shall be paid an attendance fee of $40 per day for each day's attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.
(c)(1) A witness who travels by common carrier shall be paid for the actual expenses of travel on the basis of the means of transportation reasonably utilized and the distance necessarily traveled to and from such witness's residence by the shortest practical route in going to and returning from the place of attendance. Such a witness shall utilize a common carrier at the most economical rate reasonably available. A receipt or other evidence of actual cost shall be furnished.
(2) A travel allowance equal to the mileage allowance which the Administrator of General Services has prescribed, pursuant to section 5704 of title 5, for official travel of employees of the Federal Government shall be paid to each witness who travels by privately owned vehicle. Computation of mileage under this paragraph shall be made on the basis of a uniformed table of distances adopted by the Administrator of General Services.
(3) Toll charges for toll roads, bridges, tunnels, and ferries, taxicab fares between places of lodging and carrier terminals, and parking fees (upon presentation of a valid parking receipt), shall be paid in full to a witness incurring such expenses.
(4) All normal travel expenses within and outside the judicial district shall be taxable as costs pursuant to section 1920 of this title.
(d)(1) A subsistence allowance shall be paid to a witness when an overnight stay is required at the place of attendance because such place is so far removed from the residence of such witness as to prohibit return thereto from day to day.
(2) A subsistence allowance for a witness shall be paid in an amount not to exceed the maximum per diem allowance prescribed by the Administrator of General Services, pursuant to section 5702(a) of title 5, for official travel in the area of attendance by employees of the Federal Government.
"The Supreme Court has said that the discretion of district judges to tax costs should be sparingly exercised regarding expenses not specifically allowed by statute." Studiengesellschaft Kohle v. Eastman Kodak Co., 713 F.2d 128, 132 (5th Cir. 1983) (citing Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235 (1964)).
Expert witnesses fees
Defendant amended its request of $3,000 for expert witness fees incurred to depose Plaintiff's expert Dr. Monsivais to $40.00. When 28 U.S.C. § 1920(3) is read in conjunction with section 1821, the statutes authorize $40.00 to be paid as an expert witness fee for each days' attendance at a deposition. See Crawford, 482 U.S. at 440 (holding the court may tax expert witness fees in excess of the statutory maximum set out in section 1821(b) only where the witness is court appointed). Therefore, the Court may only tax as costs $40.00 for expert witness fee of Dr. Monsivais.
Although Crawford specifically addressed fees paid to a party's own expert witness, the court finds no distinction between fees paid to a party's own expert witness or those necessarily occurred to depose opposing counsel's expert witness, nor does the statute make such a distinction.
Costs of Dr. Leopold
Plaintiff argues that it should not have to pay the costs associated with bringing Dr. Seth Leopold from Seattle, Washington to El Paso, Texas for trial because his deposition was available and his presence was not necessary at trial. Costs are taxable to Plaintiff for witnesses pursuant to 28 U.S.C. § 1920(3) read in conjunction with section 1821 only where they are necessarily obtained for use in the case. See Studiengesellschaft Kohle, 713 F.2d at 133; Holmes, 11 F.3d at 65. In a medical malpractice case, having Plaintiff's treating physician testify live at trial was necessary for Defendant's success at trial. Moreover, the costs totaling $503.30 as amended by Defendant and supported through evidence were reasonable and authorized by statute.
This total consists of $80.00 for two days presence at trial, $35.00 for two days per diem allowance, $318.30 for traveling on a common carrier, and $70.00 subsistence allowance.
Trial transcript
Section 1920(2) authorizes "fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." 28 U.S.C. § 1920(2). Trial transcript fees are recoverable upon a showing that they were necessarily obtained for use in the case. See J.T. Gibbons, Inc. v. Crawford Fitting Co., 760 F.2d 613, 615 (5th Cir. 1985). The case at bar was tried to the bench. As such, the Court requested that counsel submit findings of fact and conclusions of law after the conclusion of the trial. Defendant's counsel relied on the trial transcript in making this submission. The Court finds that the trial transcript was necessarily obtained for use in the case in order to submit thorough and accurate findings of fact and conclusions of law. Moreover, the Court finds that in order for counsel to comply with its March 22, 2005 deadline for submission of their proposed findings of fact and conclusions fo law, requesting the transcript on an expedited basis was necessary. Therefore, the Court awards costs of the trial transcript necessarily obtained for use in this case in the amount of $2,897.40.
Witness depositions
[P]revailing parties are entitled to recover the costs of original depositions and copies of said depositions under 28 U.S.C. § 1920(2) and § 1920(4) respectively, provided they were `necessarily obtained for use in the case.' . . . If, at the time it was taken, a deposition could reasonably be expected to be used for trial preparation, rather than merely for discovery, it may be included in the costs of the prevailing party. Whether a deposition or copy was necessarily obtained for use in the case is a factual determination to be made by the district court.Fogleman v. Aramco (Arabian Am. Oil Co.), 920 F.2d 278, 285-86 (5th Cir. 1991). The Court finds that the depositions and copies of the depositions of the doctors and witnesses were necessarily obtained for use in the trial or for trial preparation, or were reasonably expected to be necessary for such use.
The Court, however, finds that all of the deposition costs certified on July 8, 2005 by Defense Counsel are not authorized by statute. Specifically, our Circuit has held that investigation and videotaping costs are not a category of expenses authorized by section 1920. Mota v. University of Texas Houston Health Science Center, 261 F.3d 512, 529-30. Therefore, Defendant's bill of costs is reduced by $225.00 for the videotape of Jose Monsivais's deposition and $132.00 for an Idex Search on Plaintiff's Expert Jose Monsivais, M.D. Moreover, section 1920 does not explicitly authorize certificates of non appearance, ASCII Disks, compressed transcripts, shipping or administrative fees, or payment for records retrieval services. Because these items are not authorized by statute, are incidental to this case, and are primarily for the convenience of counsel, the Court reduces the bill of costs by $5.00 for ASCII Disk; $40.00 for compressed transcript; $25.00 shipping administrative fee relating to the deposition of Seth. S. Leopold, M.D.; $83.00 for the certificate of nonappearance of Jose Monsivais, M.D.; and all fees relating to record retrieval in the amount of $252.30. Thus the Court finds that the costs associated with original depositions and copies of original depositions necessary for the use in this case total $2,079.95.
It should be noted that Defendant withdrew its request for this fee.
Copying costs
Plaintiff argues that copying costs are costs not within the meaning of reimbursements for costs of the prevailing party and should be provided by counsel in connection with the rendition of legal services. 28 U.S.C. § 1920(4) authorizes costs for "copies of papers necessarily obtained for use in the case." "The cost of copying other documents is subject to the same standard as that of copying depositions: reproductions necessarily obtained for use in the case are included within taxable costs, provided that the prevailing party demonstrates that necessity." Fogleman, 920 F.2d at 286. Moreover, Plaintiff
should be taxed for the cost of reproducing relevant documents and exhibits for use in the case, but should not be held responsible for multiple copies of documents, attorney correspondence, or any of the other multitude of papers that may pass through a law firm's xerox machines. . . . To the extent that counsel charges a party more than actual cost for any service, be it reproduction of documents or telephone calls, counsel is recovering additional fees. . . . [The cost must be] an accurate reflection of the actual cost to the law firm of making these copies or the cost of obtaining copies on the open market, if that is higher or if it is difficult to compute `actual cost' accurately and inexpensively.Id. at 286-87.
Defendant attached to its bill of costs a list of its copying costs. In essence, this list is comprised of the pleadings and other notices or submissions to the court including exhibits. The fee is then determined by the number of pages per document and the number of copies of said document multiplied by cost per page of $.25. The Court finds that the documents identified in attachment 2 to its bill of costs were necessarily obtained for use in this case as they are all either pleadings, notices, or other filings necessary to this case. The court finds that only one entry, #30, for a letter agreement should be disallowed as attorney correspondence.
Defendant has not provided the Court with documentation of its actual cost of copying these documents and the Court finds that it would be difficult or too expensive for Defendant to compute its actual cost. Therefore, the Court uses the cost of obtaining copies on the open market. After a cursory inquiry of this Court, it found that the market rate of copying documents fluctuates. Per copy the district clerk's office charges $.25; a local Kinko's charges $.08 although one must copy it oneself, a local copying center specializing in law firm copying charges $.12 for non glasswork copies and $.25 for glasswork copies. The court finds that a market rate of .$25 per copy is fair and reasonable and the total costs taxed to Plaintiff for copying is $1,238.00.
Conclusion
After reviewing the action of the clerk, the Court finds the costs permitted by statute totaling $6,758.65 were necessarily obtained for use in this case.
IT IS THEREFORE ORDERED "Plaintiff's Motion to Review Taxation of Costs" [Rec. No. 50] is GRANTED in PART and DENIED in PART.
IT IS FURTHER ORDERED that $6,758.65 is taxed as costs against Plaintiff.