Opinion
Civil Action No. 05C-05-023 THG.
July 5, 2006.
Edward C. Gill, Esquire, Georgetown, DE.
Michael J. Logullo, Esquire, Morgan, Shelsby Leoni, Stanton, DE.
Dear Counsel:
This is the Court's decision as to Plaintiff, Leonard Guilianelli's Motion for Costs. For the reasons stated herein, the Plaintiff's Motion is denied.
Statement of Facts
On April 24, 2006, the Defendant made an offer of judgment in the amount of $17,500. On May 16, 2006, the jury found for the Plaintiff awarding him the amount of $15,000.
Following the judgment, Plaintiff has filed a motion seeking his costs for the video deposition of Dr. Spieker. Specifically, he seeks the videographer's fee, the court reporter's fee in addition to Dr. Spieker's deposition costs. Dr. Spieker was deposed prior to the offer of judgment.
The Defendant opposed the award of Plaintiff's costs arguing that his offer of judgment under Rule 68 trumps Plaintiff's opportunity to obtain any costs under Rule 54 (d). Defendant also argues that by getting a jury award less than the offer of judgment that the Plaintiff is not a "prevailing party" under Rule 54 (d).
Additionally, Defendant raises for the first time in his response 10 Del. C. § 5102 as a bar to Plaintiff's motion for costs. Because of this, Plaintiff was given an opportunity to respond.
Discussion
The Plaintiff is the "prevailing party" as required by Rule 54 (d). The Plaintiff is the party in whose favor the jury has found and thus the prevailing party.
Graham v. Keene Corp., 616 A.2d 827, 827-829 (Del. 1992).
Rule 54 (d) and Rule 68 are separate rules addressing costs and should be read harmoniously. Rule 68 does not trump Rule 54 (d). Plaintiff, a loser under Rule 68, may still be a winner under Rule 54 (d) for the costs incurred up until the offer of judgment.
Superior Court Civil Rule 54(d) states: Except when express provision therefore is made either in a statute or in these Rules or in the Rules of the Supreme Court, costs shall be allowed as of course to the prevailing party upon application to the Court within ten (10) days of entry of final judgment unless the Court otherwise directs. Super. Ct. Civ. R. 68.
Superior Court Civil Rule 68 states: At any time more than 10 days before the trial begins a party defending a gainst a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or prop erty or to the effect specified in the offer, with co sts then accrued . . . If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. Super. Ct. Civ. R. 68.
Nygaard v. Lucchesi, 654 A.2d 410 (Del.Super.Ct. 1994); Bell v. Bershears, 42 S.W.3, 32, 36-37 (Ark. 2002); Champion Produce, Inc. v. Ruby Robinson, Inc., 342 F.3d 1016, 1022-1024 (9th Cir. 2003).
Rule 54 (d) costs include the video deposition of an expert used at trial when the deposition occurs prior to the offer of settlement.
Nygaard, 654 A.2d at 413-414.
Plaintiff's problem with obtaining costs is not Rule 68, but rather 10 Del. C. § 5102. Per Plaintiff's praecipe and Defendant's testimony at his deposition, he resides in New Castle County. By filing the lawsuit in Sussex County, the Plaintiff lost the ability to recover costs including expert witness fees.
Zazanis v. Jarman, 1990 WL 58158, *1-*2 (Del.Super. 1990).
Plaintiff's Motion for Costs is denied.