Opinion
CIVIL ACTION NO: 01-0622, SECTION "F" (4)
January 16, 2003
REPORT AND RECOMMENDATION
The plaintiffs, Shirley Hamilton, wife of/and Henry Hamilton, have filed a Motion to Reconsider Bill of Costs (doc. #77) requesting that the Court reconsider the assessment of costs made by the Clerk of Court on July 11, 2002. The matter has been referred to the undersigned United States Magistrate Judge to conduct hearings and to submit Proposed Findings and Recommendations for disposition. I. Background
The Motion to Reconsider Bill of Costs was referred to the undersigned on July 31, 2002. Rec. Doc. No. 78.
This suit arises out of a claim for damages filed by Shirley Hamilton, wife of/and Henry Hamilton. Henry Hamilton was a longshoreman employed by the defendant, San Denizcilik Ve Ticaret, a.k.a., San Shipping and Trading, S. A. ("San Shipping"). In May 1999, Hamilton was injured when he slipped and fell in a puddle of hydraulic fluid that had accumulated on the deck of the M/V OKTEM ASKOY. The hydraulic fluid spilled from a bucket that had been placed under a leaking cylinder into the area where Hamilton was flagging a crane during the unloading process. The plaintiff filed suit against San Shipping, as the owner of the M/V OKTEM ASKOY, seeking to recover for his injuries.
A bench trial was held on the matter on May 13, 2002 before District Judge Martin L. C. Feldman. At the conclusion of the plaintiffs evidence, the Court granted the defendant's motion for a Rule 41 involuntary dismissal and ordered the Clerk to enter judgment. Judge Feldman dismissed the plaintiffs suit with prejudice and with costs on May 14, 2002.
Rule 41 of the Federal Rules of Civil Procedure provides:
For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
Fed R. Civ. P.41(b).
Rec. Doc. No. 71.
On June 6, 2002, San Shipping submitted an Application for Bill of Costs seeking to recover $9,239.53. The plaintiff opposed the application contending that San Shipping sought to recover expenses that were not taxable. Particularly, the plaintiff claimed that the travel and overnight expenses of an interpreter claimed by San Shipping were not taxable expenses. The plaintiff also claimed that the time expended and the rates charged by the interpreter were excessive. The plaintiff further contended that the expenses of a witness, Mustafa Demir, were excessive and unnecessary. Nonetheless, on July 11, 2002, costs were taxed by the Clerk of Court in the amount of $9,239.53.
Rec. Doc. No. 73.
Rec. Doc. No. 76.
The plaintiff filed the instant motion requesting that the Court reconsider the assessment of costs made by the Clerk of Court. Specifically, the plaintiff contends that the amounts awarded for the expenses of the interpreter and the travel expenses of Demir are excessive and unnecessary. The plaintiffs also contend that any expenses allocated to the interpreters should include only compensation, not other expenses. They contend that because an interpreter in the New Orleans area was available during the trial of this matter, any expenses San Shipping incurred in having to transport an interpreter from New York should not be allowed.
The plaintiffs further contend that as the trial of this matter only lasted for one day, San Shipping's request to recover for three days with the interpreter is excessive. Finally, the plaintiffs contend that the costs of bringing in Demir from South Africa should not be allowed as Demir served as San Shipping's corporate designee. As such, the plaintiffs claim that Demir was a party to the litigation and San Shipping is not entitled to recover his travel expenses.
San Shipping opposes the motion contending that the Clerk of Court properly concluded that the interpreter expenses and witness travel expenses were necessary and reasonably incurred in San Shipping's defense of the plaintiffs claims. San Shipping denies that Demir was a corporate designee and contends that it was necessary for it to bring Demir from South Africa to defend against the plaintiff's claims. It also contends that as it was unable to locate an interpreter in the New Orleans area who would be available during the trial, it was required to obtain the services of Ms. Gunay Didem Oguz who is located in New York.
II. Analysis
Pursuant to Rule 54(d) of the Federal Rules of Civil Procedure, costs are generally allowed as a matter of course to the prevailing party unless the court otherwise directs. Walton v. Autotrol Corporation, 1998 WL 531881 (N.D.Tex. 1998); Green Construction Company v. Kansas Power Light Company, 153 F.R.D. 670, 674 (D.Kan. 1994). The taxing of costs, except as otherwise provided by statute, rests largely in the sound discretion of the trial court. Green Construction Company, 153 F.R.D. at 674. The Supreme Court has specifically held, however, that the courts discretion in taxing costs is limited by 28 U.S.C. § 1920, which specifies the categories of costs that may be awarded. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987).
28 U.S.C. § 1920 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 . . .
The discretion of the court in determining and awarding costs is contingent on the court's determination that the expenses requested are allowable cost items under the statute and that the amounts requested are reasonable and necessary. Green Construction Company, 153 F.R.D. at 674 (citing Northbrook Excess and Surplus Ins. Co. v. Proctor Gamble Co., 924 F.2d 633, 642 (7th Cir. 1991)). A district court may decline to award court costs listed in the statute but may not award costs omitted from the statute. Crawford, 482 U.S. at 441-42; Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993), cert. denied, 510 U.S. 1195 (1994).
The Court will now address each of the plaintiffs objections to determine whether the costs submitted by San Shipping were authorized by statute and were reasonable and necessarily incurred.
A. Mustafa Demir
The plaintiffs contend that San Shipping is not entitled to recover costs incurred in bringing in Mustafa Demir as a witness because Demir served as a corporate designee. To support its contention that Demir was a corporate designee, the plaintiffs contend that Demir was exempt from sequestration as he was allowed to remain in the courtroom after all other witnesses were sequestered.
San Shipping refutes this assertion stating that Demir was not a corporate designee. Although it concedes that Demir was not sequestered, San Shipping contends that Demir is not a corporate officer, is not a principal, is not on the board of director's and does not control San Shipping. It contends that Demir was a crewmember of the M/V OKTEM ASKOY at the time of the plaintiffs' alleged accident and was brought in to testify as a fact witness.
The award of witness fees under § 1920(3) is limited by three statutory provisions: (1) under 28 U.S.C. § 1821(b), a witness shall be paid a fee of $40.00 per day for court attendance; (2) pursuant to 28 U.S.C. § 1821(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; and (3) under 28 U.S.C. § 1821(c)(4), [a]ll normal travel expenses . . . shall be taxable as costs. Hence, Title 28 U.S.C. § 1821 expressly authorizes the payment of a witness fee of $40.00 per day for court attendance, plus subsistence and the normal costs of travel. Ezelle v. Bauer Corporation, 154 F.R.D. 149, 153 (S.D.Miss. 1994).
The only expense at issue here is Demir's travel expenses from South Africa. Title 28 U.S.C. § 1821(a)(1) , expressly authorizes the payment of a witness fee and a travel and subsistence allowance for "a witness in attendance at any court of the United States." Under this authority, the Clerk of Court taxed as costs the fees of Demir for attendance at the trial of this matter.
28 U.S.C. § 1821(a)(1) provides: 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.
In order to attend the trial, Demir traveled more than 100 miles. Although § 1821(c)(4) authorizes the taxation of"[a]ll normal travel expenses within and outside the judicial district," many courts have not allowed travel expenses for witnesses who travel more than 100 miles on the basis that, because a district court cannot use its subpoena power to compel a witness to travel more than 100 miles, a party who persuades witnesses to do so by paying their transportation expenses should not be able to tax those expenses to his adversary. West Wind Africa Line v. Corpus Christi Marine, 834 F.2d 1232, 1237 (5th Cir. 1988) (citing Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964)).
However, the statute contains no such limitation. West Wind, 834 F.2d at 1237 (discussing witness fees for two expert witnesses' attendance at a deposition). Section 1821(c)(4) expressly states that "travel expenses within and outside the judicial district shall be taxable as costs. . . ." Id. Nonetheless, the allowance of expenses for traveling a distance in excess of one hundred miles is to be determined by trial courts using their usual sound discretion. Id. In doing so, the trial court should consider the length of the journey, the necessity of the testimony, and the possibility of averting that expense.
Here, San Shipping contends that Demir's testimony was vital to its defense. The plaintiffs filed suit contending that as a result of San Shipping's negligence, Henry Hamilton was injured when he slipped and fell in a puddle of hydraulic fluid that had accumulated on the deck of the M/V OKTEM ASKOY. San Shipping contends that Demir was the second officer aboard the vessel at the time of the alleged accident and was needed to establish San Shipping's lack of knowledge of a hazardous condition in Hamilton's work area. As Demir's testimony would have refuted the plaintiffs' claims, San Shipping was entitled to have him present at the trial. Further, the Court notes that the plaintiffs have not disputed that Demir's testimony was essential to San Shipping's defense or that San Shipping could have averted Demir's expense.
However, the plaintiffs do contend that San Shipping should not recover costs incurred in transporting Demir to New Orleans for trial because Demir served as San Shipping's corporate designee. The Court notes that there is authority to support the plaintiffs' proposition as courts have consistently held that parties are not entitled to witness fees for their own appearances in court. See Green Const. Co. v. Kansas Power Light Co., 153 F.R.D. 670, 678-79 (D.Kan. 1994); Ezelle v. Bauer Corporation, 154 F.R.D. 149, 154 (S.D.Miss. 1994) (holding that corporate representative was entitled to the statutory attendance fee and subsistence allowance provided for witnesses under 28 U.S.C. § 1821, but could not recover air fare expenses as such costs were incurred in his capacity as corporate representative and not in his capacity as a witness); Morrison v. Alleluia Cushion Company, Inc., 73 F.R.D. 70, 71 (N.D.Miss. 1976) (holding that costs not recoverable for executive officer and principal stockholder of the corporate defendant who was not placed under the rule of sequestration as to the presence of witnesses in the courtroom); see also Pate v. General Motors Corporation, 89 F.R.D. 342, 344 (N.D.Miss. 1981) (holding that the cost of taking a corporate representative's deposition was not a proper charge).
Equally consistently, however, courts have held that costs may be assessed for corporate officers and directors not personally involved in the litigation who testify on behalf of the corporation. WH Smith Hotel Service, Inc. v. Wendy's Int'l, Inc., 25 F.3d 422, 429 (7th Cir. 1994); see Green Const. Co., 153 F.R.D. at 678 ("the expenses of a director or officer of a corporate party who is not personally involved in the litigation may be taxable if he is testifying on behalf of the corporation he represents, and that corporation is a party to the lawsuit."); Dasher v. Mutual Life Insurance Co. of New York, 78 F.R.D. 142, 144 (S.D.Ga. 1978) (holding that the expenses of corporate officers of a party in traveling to the place of trial is taxable against the losing party in the discretion of the court).
In the instant case, San Shipping contends that Demir was only a crewmember of the M/V OKTEM ASKOY and did not serve as its representative. The plaintiffs have failed to provide any evidence that would suggest otherwise. Therefore, the Court finds that Demir was not a party to this litigation and will allow San Shipping to recover the costs incurred in transporting Demir to New Orleans for trial. B. Interpreter
The Court notes that in its witness list submitted on March 1, 2002, San Shipping listed Demir as the Second Officer of the M/V OKTEM ASKOY. Rec. Doe. No. 39.
The prevailing party may recover the expense of transportation of witnesses who are present at the trial but not put on the stand provided their testimony is relevant and material and is necessary to the prevailing party's case. Dasher v. Mutual Life insurance Co. of New York, 78 F.R.D. 142, 144 (S.D.Ga. 1978).
The plaintiffs contend that San Shipping should not have recovered for the travel expenses incurred in transporting a Turkish interpreter from New York to New Orleans. They also contend that as the trial of this matter only lasted one day, San Shipping should not have been allowed to recover for three days with the interpreter. The plaintiffs further contend that a local qualified interpreter of the Turkish language was available at the time of trial.
San Shipping, however, contends that because Demir, a Turkish national who speaks very little English, was aboard a vessel in South Africa and had not obtained a visa, it was uncertain as to whether Demir would be available for trial. It contends that it only learned on May 6, 2002, one week before trial, that Demir could be removed from the vessel and had obtained a visa to enter the United States. Upon learning the Demir would be available, San Shipping began its search for an interpreter. The only available interpreter on such notice was Ms. Gunay Didem Oguz who was located in the state of New York.
The language of § 1920(6) expressly provides that the compensation of interpreters may be taxed as costs. San Shipping contends that the travel expenses of an interpreter are recoverable so long as such expenses were necessarily obtained for use in the case. In support of this proposition, San Shipping has cited Studiengesellschaft Kohle v. Eastman Kodak Co., 713 F.2d 128, 133 (5th Cir. 1983) (holding that costs of an interpreter are taxable only if "necessarily obtained for use in the case."). However, following the Fifth Circuit decision in Eastman Kodak, the Supreme Court decided Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987).
In Crawford, the Supreme Court held that, in cases in which there is no basis for an award of attorney's fees: 1) absent explicit statutory or contractual authorization to the contrary, courts may not tax items other than those listed in 28 U.S.C. § 1920 as costs against the losing party; 2) Federal Rule of Civil Procedure 54(d) allows trial courts to refuse to tax costs otherwise allowable, but it does not give them the power to tax items not elsewhere enumerated; and 3) insofar as there are statutory limits to the amounts that may be taxed as costs, Rule 54(d) does not empower courts to exceed those limits. West Wind Africa Line, Ltd. v. Corpus Christi Marine Servs., 834 F.2d 1232, 1236 (5th Cir. 1988). Thus, the relevant question under Crawford is whether there is any statutory authorization for the taxing of the requested costs. Id.
Cases prior to Crawford had allowed the taxing of costs for items not enumerated in § 1920 when the items were necessarily obtained for use in the case. See e.g., Eastman Kodak Co., 713 F.2d at 128. After Crawford, however, the primary inquiry must be whether a claimed expense is encompassed by § 1920 or some other specific statute as an award of costs may not be entered absent specific statutory authority for the award. See Crawford, 482 U.S. at 441-42.
If the requested expense is not encompassed by the statute, the court need not consider whether the items were necessarily obtained. See Northbrook Excess and Surplus Ins. Co. v. Procter Gamble Co., 924 F.2d 633, 644 (7th Cir.1991). However, the Supreme Court did not prevent courts from interpreting the meaning of the phrases used in § 1920. SK Hand Tool Corp. v. Dresser Indus., Inc., 852 F.2d 936, 943 (7th Cir. 1988) (citing West Wind Africa Line, Ltd. v. Corpus Christi Marine Servs., 834 F.2d 1232, 1238 (5th Cir. 1988)).
Neither party has cited and the court is not aware of any authority discussing whether the travel and subsistence expenses of an interpreter maybe included as "compensation of interpreters" under § 1920(6). However, a resolution of the issue is not required here as the court finds that even if it had the discretion to award these traveling and subsistence expenses, it would not exercise such discretion here as it is not clear that such expenses were necessary or reasonable.
There is no dispute that the services of a Turkish interpreter were needed during the trial of this matter. However, the Court is not convinced that the costs incurred by San Shipping in transporting an interpreter from New York to New Orleans were necessary. Although San Shipping was uncertain as to whether Demir would be available for the May 13, 2002 trial date, the Court notes that San Shipping listed Demir on its may call witness list submitted on March 1, 2002. San Shipping, however, has provided no indication as to why it could not have obtained the services of an interpreter at that time. Further, the plaintiff has provided evidence that a local interpreter of the Turkish language was available for the trial of this matter.
Rec. Doc. No. 39.
The Court finds that because San Shipping was aware, two months prior to trial, that Demir may be called as a witness, the search for an interpreter could have begun well before May 6, 2002. As such, the costs incurred by San Shipping in transporting the interpreter from New York were not reasonable as such costs could have been averted. Therefore, the costs of the interpreter should be reduced in the amount of $2,475.00. III. Recommendation
The interpreter arrived in New Orleans on a Saturday, May 11, 2002, and departed on a Monday, May 13, 2002. As the Court finds that San Shipping should not recover for transporting an interpreter from New York, the Court has deducted the $1,000 per day fee of the interpreter for Saturday and Sunday and the $475.00 subsistence allowance.
It is therefore RECOMMENDED that the plaintiffs' Motion to Reconsider Bill of Costs (doc. #77) be GRANTED IN PART and DENIED IN PART as follows:
1) GRANTED as to the costs of the interpreter.
2) DENIED as to the costs of Mustafa Demir.
A party's failure to file written objections to the Proposed Findings, Conclusions, and Recommendation in a Magistrate Judge's Report and Recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the Unobjected-to Proposed Factual Findings and Legal Conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996).
a failure to object.