Opinion
CIVIL ACTION NO. 00-T-1703-N
May 24, 2002
Joseph (Jay) Brady Lewis, John Eric Barnett, Eileen L. Harris, Law Offices of Jay Lewis, Montgomery, Al., Attorneys for Plaintiff.
Margaret L. Fleming, William H. Pryor, Jr., Attorney General, William P. Clifford, III, Office of the Attorney General, Montgomery, AL., Stephen K. Simpson, Alabama Department of Rehabilitation Services, Montgomery, Al., Neva C. Conway, Real Estate Appraisers Board, Montogmery Board., Attorneys for Defendant.
ORDER
This case is currently before the court on the motion for judicial review of bill of costs, filed by plaintiff Antoinette Jones. Jones brought this lawsuit naming at least 14 Alabama state officials and departments as defendants and seeking damages and equitable relief for employment discrimination and retaliation claims arising under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 1981a, 2000e through 2000e — 17, and under 42 U.S.C. § 1981 as merged into 42 U.S.C. § 1983. The court entered summary judgment in favor of the defendants on all counts on December 26, 2001. Jones v. Siegelman, 2001 WL 1772159 (M.D. Ala. 2001). For the reasons below, Jones's motion will be granted in part and denied in part.
I. DISCUSSION
Jones objects to the defendants' bill of costs for the following reason: that the defendants failed to provide an itemization of the costs and supporting documentation to the clerk to support an award for (1) fees and disbursements for printing in the amount claimed of $2,449.50, and (2) docket fees under 28 U.S.C. § 1923 of $60.00.
The standard-form bill of costs used in this court requires prevailing parties to itemize their costs. The cost categories that are relevant to this case include (1) fees of the court reporter for all or any part of the transcript necessarily obtained for use in the case; (2) fees and disbursements for printing; (3) fees for exemplification and copies of papers necessarily obtained for use in the case; and (4) docket fees under 28 U.S.C. § 1923. In their bill of costs, the defendants included $1,583.30 as fees of the court reporter, $2,449.50 as fees and disbursements for printing, and $60.00 as docket fees, for a total bill of $4,092.80.
In their response to Jones's motion for judicial review of costs, the defendants set forth the itemization of expenses that was missing from their bill of costs. The defendants explain that the $2,449.50 figure was derived by multiplying the total number of necessary pages by a cost of 50 ¢ per page. The defendants state that, although many more pages were printed and copied for this case, the pages for which costs were requested included only the motion for summary judgment, the brief in support of that motion, and two volumes of the evidentiary record. These pages totaled 1,200. Although the defendants state that they request the costs of printing five "copies," it is clear that they are actually requesting printing costs for the original, which went to the court, plus four photocopies of the original: one for opposing counsel and three for defense counsel. Five copies of 1,200 pages at 50 ¢ per page equals $3,000:
1,200 pages x 5 copies = $6,000
6,000 pages x $.50 = $3,000
It is unclear why the defendants request $2,449.50 instead of $3,000.
This court addressed the issue of copying charges in Coleman v. Roadway Express, 158 F. Supp.2d 1304 (M.D. Ala. 2001) (Thompson, J.). There, the court held that 28 U.S.C. § 1920(4) specifically allows the recovery of "[f]ees for exemplification and copies of papers necessarily obtained for use in the case." (emphasis added). Therefore, the standard for determining whether particular photocopying costs should be awarded is "whether the prevailing party could have reasonably believed that it was necessary to copy the papers at issue." EEOC v. W 0, Inc., 213 F.3d 600,624 (11th Cir. 2000). In defense of the 50 ¢ per page rate they have requested, the defendants argue that other judicial and legislative entities have set 50 ¢ per page as a reasonable fee, including the federal district courts and appellate courts (set by the Judicial Conference of the United States) and the Alabama State Legislature.
As to the original documents themselves, the court finds that it was reasonably necessary for the defendants to submit all of the documents contained in their summary-judgment motion and exhibits — especially given that the case centered on a large number of employment applications Jones had submitted to various departments and agencies of the State of Alabama.
While the court finds the total number of pages (1,200) to be necessary, it will not allow the defendants to bill 50 ¢ per page for photocopying costs. The reason that the federal district and appellate courts charge this amount is that when the public requests copies from the courts, docketing clerks or other court personnel must copy the requested documents from files that cannot leave the premises, thus making these staff members unavailable for other tasks. The defendants argue that, as a state agency, the Attorney General's Office is entitled to a rate of 50 ¢ per page because it has the same limited-resources concerns as the courts and the state legislatures. However, the courts and the state legislatures are not primarily occupied with pursuing or defending litigation, in contrast to the Attorney General's Office. It is a routime and accepted aspect of legal practice that attorneys are responsible for photocopying submissions, either within their offices or through outside contractors. Unlike the courts and legislature, the Attorney General's Office could have hired an independent contractor to make duplicate copies of its pleadings and evidentiary submissions at a lower cost than 50 ¢ per page. The court thus finds that 25 ¢ per page is reasonable for a state agency to charge for photocopying. See Maricus W. ex rel. Marvin M. v. Lanett Cit Bd. of Ed., 142 F. Supp.2d 1327 (M.D. Ala. 2001) (DeMent, J.) (allowing board of education to charge 25 Z per page as "reasonable").
The defendants have requested costs for the original plus four copies of their summary-judgment motion and exhibits, including three copies for defense counsel, for a total of five copies. The court will not allow the defendants to recover for the original documents filed with the court; these documents were not photocopied within the meaning of § 1920(4); rather the defendants used the original to make the photocopies at issue. See El-Fadl v. Central Bank of Jordan, 163 F.R.D. 389, 390 (D.D.C. 1995) (holding that, where the prevailing party sought to recover costs for printing the original set of pleadings, "[t]he costs of a word processor, printer and paper are part of the overhead of any modern law office. . . . The recovery for word processing charges under the guise of printing charges is disallowed as outside the scope of § 1920. Corsair Asset Management, Inc. v. Moskovitz, et al., 142 F.R.D. 347,351 (D. Ga. 1992).").
Ordinarily, neither this court nor other courts allow parties to recover the costs of duplicate copies of submissions made for "the convenience of the attorneys." Blevins v. Heing-Meyers Corp., 184 F.R.D. 663 (M.D. Ala. 1999) (Thompson, J.); see also Baxter Intern., Inc. v. McGaw, Inc., 1998 WL 102668 (N.D. Ill. 1998) (Lind.berg, J.) (allowing costs for copies of trial exhibits for court, court's law clerk, Opposing counsel, and jury, but not extra copies of the trial exhibits made for multiple defense lawyers' own use) Here, however, the defendants have noted that they submitted charges for only the summary-judgment motion and exhibits, and not for originals or copies of other pleadings and documents necessary in this case, the costs of which they would have been entitled to recover as well. See Desisto College v. Town of Howey-in-the-Hills, 718 F. Supp. 906,913 (M.D. Fla. 1989) (Black, J.) (holding that "[c]opies 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"), aff'd, 914 F.2d 267 (11th Cir. 1990) (table). Nevertheless, this reason does not justify charging Jones for unauthorized copies of the summary-judgment motion and exhibits. The court will therefore disallow two of the three copies the defendants made for themselves; the two extra copies were merely for the convenience of defense counsel.
The court will, therefore, allow reimbursement for two copies: one of the three copies the defendants made for themselves, and the copy they made for plaintiff. The defendants may recover photocopying costs as follows:
1,200 pages x 2 copies = 2,400 pages
2,400 pages x $.25 = $600
As to the issue of docket fees, the defendants requested $60.00, which, they specify, is for depositions and a final hearing. In determining whether the cost of a particular deposition is taxable, "the district court must evaluate the facts of each case and determine whether all or any part of a copy of any or all of the depositions was necessarily obtained for use in the case." Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 337 (5th Cir. June 1981) (quoting Kolesar, 313 F.2d at 840). "[W]here the deposition costs were merely incurred for convenience, to aid in a more thorough preparation of the case, or for purpose of investigation only, the costs are not recoverable." DiCecco v. Dillard House, Inc., 149 F.R.D. 239, 241 (N.D. Ga. 1993). "(A] district judge has great latitude in determining whether a deposition was "necessarily obtained for use in the case" or was obtained merely for the convenience of the attorneys." Newman, 648 F.2d at 337.
In Bonner v. City of Prichard, 661 F.2d 1206,1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent the decisions of the former Fifth Circuit handed down prior to October 1, 1981.
Under 28 U.S.C. § 1923(a), an attorney may have docket fees taxed as follows: $2.50 for "each deposition admitted in evidence" and $20.00 for a "final hearing . . . in civil cases." The defendants presented evidence to show that 16 depositions were taken. The court finds that these depositions were necessarily obtained for use in the action when taken. The depositions included those of Jones as well as each of the named defendants in the case, all of whom would be expected to have information relevant to the case. And, of course, the court' s entry of summary judgment constituted a "final hearing." The defendants will therefore be allowed $60.00 for docket fees: $40 for the depositions, and $20 as a "final hearing" fee.
Jones does not object to the taxing of court reporter fees in the amount of $1,583.30, and therefore that part of the bill is upheld. Given the reduction in fees for printing and copying, Jones should be taxed $600.00 for costs pursuant to 28 U.S.C. § 1920(4), and $60.00 for docket fees, for a total of $2,243.30 in costs.
II. CONCLUSION
Accordingly, it is ORDERED that:
(1) Plaintiff Antoinette Jones's motion for judicial review of bill of costs, filed January 30, 2002 (Doc. no. 56), is granted in part and denied in part;
(2) Defendants Don Siegelman, et al., shall have and recover from plaintiff Jones the sum of $2,243.30 for costs.