Opinion
No. 97-1270-JTM.
March 28, 2001.
MEMORANDUM AND ORDER
This matter is before the court on defendant Bill Harrison's bill of costs and plaintiffs' objections to those costs. Plaintiff had filed an action seeking damages from defendants under the Oil Pollution Act, 33 U.S.C.A 2701 et. seq., claiming defendant Harrison and other defendants were responsible for a discharge of oil or a substantial threat of a discharge of oil from a covered onshore facility. Plaintiffs sought costs of preventing or minimizing the claimed oil pollution, as well as other relief.
Prior to trial, defendant made an offer of judgment in the amount of $6,000, which plaintiffs rejected. At the close of plaintiffs' case-in-chief, the court directed a verdict for defendants and entered judgment in favor of defendants. Plaintiffs recovered nothing.
Defendant Harrison seeks the following costs:
Fees of the Clerk $ 90.00
Fees for services of summons and subpoena 53.25
Fees of the court reporter for all or any part of the transcript necessarily obtained for use in the case 3,165.12
Fees for witnesses 80.00
Fees for exemplification and copies of papers necessarily obtained for use in the case 2,165.90
Other costs and attorney's fees 62,707.42
TOTAL $68,261.42
While plaintiffs have objected to virtually every item contained in the bill of costs, and have moved to have all parties bear their own costs, the principal object of plaintiffs' concern is the claim for attorney fees, which accounts for $57,223.22 of the $68,261.42 total.
Of the "[o]ther costs and attorney's fees" total of $62,707.42 on the bill of costs, $57,223.22 is attorneys' fees, $324.14 is for mail and delivery charges, $1,502.24 represents travel expense, $2,563.90 is an expert witness fee, and $1,093.92 is for telecommunications services.
As a general rule, the prevailing party is entitled to recover its costs in federal litigation. Delano v. Kitch, 663 F.2d 990, 1001 (10th Cir. 1981); Vornado Air Circulation Systems, Inc. v. Duracraft Corp., 1995 WL 794070, at *1 (D.Kan. Nov. 29, 1995). In this case, defendant Harrison clearly prevailed, and the court finds defendant is entitled to recover his costs. Plaintiff's motion that each party bear its own costs is denied. The only two matters the court must address are what costs are recoverable and in what amounts.
ATTORNEY FEES. Attorney fees typically are not recoverable as costs. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Harrison seeks attorneys' fees on several grounds, none of which the court finds adequate to support such fees in this case. Harrison cites Fed.R.Civ.Pr. 68 as a grounds for awarding fees, stating that he had made an offer of judgment in August of 1999 in an amount ($6,000) greater than what plaintiffs obtained at trial. However, as plaintiffs correctly point out, Rule 68 does not apply when the court enters judgment in favor of the defendant. Delta Airlines, Inc. v. August, 450 U.S. 346 (1981). Harris also suggests that an award of attorney fees is appropriate under K.S.A. 60-2001(d). However, again as plaintiffs correctly stress in their brief, the Kansas statute specifically states that a court may award attorney fees as additional costs as "required by statute." The statute does not independently authorize the award of attorney fees. The defendant is entitled to recovery of attorney fees under Kansas law only if he can point to some specific statutory authorization, Walker v. State, 26 Kan. App.2d 410, 988 P.2d 283 (1999), and the defendant Harrison here clearly has failed to identify any relevant statutory provision governing the action which would authorize an award of attorney fees.
EXPERT WITNESS FEES. Harrison next seeks to recover $2,562.90 as an expert witness fee paid to Robert Stalling. Settled Tenth Circuit case law clearly holds that for purposes of taxed costs, expert witnesses are treated as regular witnesses. Ortega v. IBP, Inc., 883 F. Supp. 558 (D.Kan. 1995). Therefore, the only allowable cost for Robert Stalling is the statutory fee of $40.00. The remaining $2,522.90 is disallowed.
As noted above, this amount was included in defendant's bill of costs as part of the "other costs and attorney's fees."
CLERK FEES, SERVICE FEES, DOCUMENTS, DEPOSITIONS AND RELATED EXPENSES. Plaintiffs seek to limit deposition costs to those actually used at trial. The law, however, is not so narrow, requiring that depositions be taken "for use in the case." Plaintiffs have failed to show that these depositions were superfluous or taken for any purpose other than for use, whether at a pretrial stage or for trial. Giroux v. Farm Credit Bank of Wichita, 1999 WL 641246, at *1 (D.Kan. 1999) (court may tax costs of a deposition, whether or not it was "admitted into evidence or actually used for impeachment at trial," so long as such use of the deposition "reasonably seemed necessary at the time it was taken") (citations omitted). Defendant might very well have used those depositions and exhibits in his case-in-chief had the court not entered judgment for defendant at the close of plaintiffs' case. The court finds that the Volkland and Keenan depositions were taken for use in the case.
With respect to the costs of the videotaped deposition, while earlier decisions routinely denied those expenses as costs, Coats v. Penrod Drilling Corp., 5 F.3d 877 (5th Cir. 1993), cert. denied, 510 U.S. 1195, 114 S.Ct. 1303, 127 L.Ed.2d 654 (1994), recent decisions in the Tenth Circuit and in the District of Kansas have held that videotaped depositions are not necessarily excluded under 28 U.S.C. § 1920, and that the district court may award the expense of videotaping as costs. See Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1477 (10th Cir. 1997) ("We agree with the district court that the costs associated with videotaping a deposition are taxable under section 1920(2)"); Weseloh-Hurtig v. Hepker, 152 F.R.D. 198 (D.Kan. 1993) (Saffels, J.) (finding "that it is appropriate in this case to tax the costs of both the videotaping and the stenographic transcription of the three depositions against the defendant, who did not file objections to plaintiff's deposition notices"); Meredith v. Schreiner Transport, Inc., 814 F. Supp. 1004, 1005-06 (D.Kan. 1993) (Belot, J.) (while "costs associated with the taking of videotape depositions are not specifically authorized by 28 U.S.C. § 1920(2) . . . numerous courts have held that costs associated with video depositions are nevertheless recoverable"). Thus, the deposition costs, the witness fees, the exhibits, and other expenses are approved as follows:
Fees of the Clerk ( pro hac vice fees) $ 30.00
Fees for service of summons and subpoenas 53.25
Fees of court reporter 3,147.22
Fees for witnesses (includes $40 for Robert Stalling) 120.00
Fees for exemplification; copies of papers 2,165.90
TOTAL $5,516.31
MISCELLANEOUS EXPENSES. Harrison also seeks $324.14 for mailing and express delivery services, $1,502.24 for travel expense, and $1,093.92 for long distance and facsimile telephone charges. While these items might be deemed out-of-pocket expenses in an award of attorneys' fees, they are not taxable costs. See, e.g., Pinkham v. Camex, Inc., 84 F.3d 292 (8th Cir. 1996). As noted above, attorneys' fees are not appropriate in this case, and it follows that such out-of-pocket expenses are similarly disallowed.
The court thus allows costs in the total amount of $5,516.31, as set forth above and denies plaintiff's motion that each party bear its own costs.
IT IS SO ORDERED.