Opinion
Case No.: A1-99-112
March 26, 2001
ORDER
On February 27, 2001 this Court adopted a Report and Recommendation prepared by the Honorable Dwight C. H. Kautzmann recommending that defendant's motion for summary judgment be granted and that plaintiff's claims be dismissed with prejudice. Thereafter, judgment was entered dismissing plaintiff's cause of action. Defendants seek to tax certain costs pursuant to 28 U.S.C. § 1821, 1920 along with Local Rules 7.1 and 54.1. (Doc. #83). Plaintiff resists any costs award. (Doc. #89).
As the prevailing party, defendants are presumptively entitled to an award of costs pursuant to Fed.R.Civ.Proc. 54(d). See Greaser v. State of Missouri, Dep't of Corr., 145 F.3d 979, 985 (8th Cir. 1998); Bathke v. Casey's Gen. Stores, Inc., 64 F.3d 340, 347 (8th Cir. 1995). The amount of the costs award, however, is within the discretion of the district court. Greaser, 145 F.3d at 982. The term "costs" as used within Rule 54(d) is defined by 28 U.S.C. § 1920 which outlines the expenses that may be taxed pursuant to the Rule 54(d). Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987). Defendants seek to recover costs for court reporter fees and expert witness fees. The cost of taking a deposition and transcribing it may be taxed pursuant to 28 U.S.C. § 1920(2) which allows for "fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." See Ortega v. IBP, Inc., 883 F. Supp. 558, 561 (D.Kan. 1995). Defendants request $1,803.75 for the costs associated with taking plaintiff's deposition and $1,283.60 for the costs of deposing Harris Widmer and Paul Wohnoutka. Plaintiff objects because the depositions were not used at trial. Plaintiff further asserts that assessing these costs would cause him extreme hardship.
Section 1920 of Title 28, United States Code, provides in part:
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.
Specifically, defendants request the following amounts:
Court Reporter Fees:
Brian Olander Deposition 1 and 2 ............. $1803.75 (of which, $450.00 is allocated to videotaping)
Harris Widmer and Paul Wohnoutka Deposition .. $1283.60 (of which, $73.90 is allocated to Wohnoutka; and $200.00 is allocated to videotaping)
Expert Witness Fees:
Harris Widmer ................................ $880.61
Total ........................................ $3967.96
Plaintiff's latter objection can be dealt with shortly. While the Court in its discretion may disallow costs based on extreme hardship, see In re Paoli R.R. Yard PCB Litigation, 221 F.3d 449, 462-64 (3rd Cir. 2000) (noting that losing party's indigence may be considered as a factor in determining an appropriate costs award), a bald assertion that an assessment of costs would cause extreme hardship does not suffice. Rule 54 establishes a presumption that the prevailing party is entitled to a costs award. See Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 363 (8th Cir. 1997). This presumption has not been rebutted by plaintiff. Plaintiff offers no affidavit or evidence to support his claim of extreme hardship. Thus, the Court does not consider it.
As for plaintiff's former objection, the fact that there was not a trial does not prevent the Court from awarding costs for depositions which were necessarily obtained for use in the case. See Zotos, 121 F.3d at 363. Even if a deposition is not used at trial the court has wide discretion to award costs if the deposition seemed reasonably necessary at the time it was taken and was not "purely investigative." Id. In this case, defendants provide little guidance to the Court, beyond bald assertions, that the depositions of plaintiff, plaintiff's expert Widmer, and Wohnoutka were necessarily obtained for use in the case.
It is logical to assume that the depositions of plaintiff and plaintiff's expert were reasonably necessary for trial preparation. Such persons are usually witnesses at trial and their depositions are routinely used as a basis for cross examination and for impeachment purposes at trial. As for Wohnoutka's deposition, however, defendants have not explained why his deposition was reasonably necessary to the case. The party bringing a motion for costs bears the burden of adequately supporting the requests. See Casarez v. Val Verde County, 27 F. Supp.2d 749 (W.D.Tex. 1998) (those requesting costs bear burden of furnishing reasonable accounting, detailing basis for each request); Bratcher v. Bray-Doyle Independent Sch. Dist., 8 F.3d 722, 726 (10th Cir. 1993) (burden is on prevailing party to establish the amount of compensable costs and expenses to which they are entitled). Defendants have failed to do so with regard to Wohnoutka's deposition. The Court will not search the record in an effort to support this request; that is defendants' job. Consequently, no costs will be allowed for this deposition.
As set out in footnote 2, supra, this amounts to $73.90.
Furthermore, the Court limits the costs allowed for the remaining depositions. In both requests, defendants seek to recover costs for transcription and videotaping expenses. Some courts have allowed prevailing parties to recover costs associated with videotaping depositions pursuant to 28 U.S.C. § 1920(2). See Cherry v. Champion Int'l Corp., 186 F.3d 442, 448 (4th Cir. 1999) (section 1920(2) implicitly permits taxation of the costs of video depositions); Tilton v. Capitol Cities/ABC, Inc., 115 F.3d 1471, 1477 (10th Cir. 1997); Morrison v. Reichhold Chem., Inc., 97 F.3d 460, 464-65 (11th Cir. 1996). But see Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1049 (5th Cir. 1998). These cases, however, do not stand for the proposition that both videotaping and transcription costs are automatically recoverable. To the contrary, in order to obtain costs for videotaping and transcription the prevailing party must demonstrate that both were necessarily obtained for use in the case; otherwise, only transcription costs are recoverable. Cherry, 186 F.3d at 449; Tilton, 115 F.3d at 1478; Morrison, 97 F.3d at 465. Again, defendants do not explain why it was necessary to incur both costs. Therefore, the costs of videotaping are not allowed.
As set out in footnote 2, supra, these expenses amount to $650.00.
Defendants also request the Court to tax $880.61 for the fees and expenses associated with taking plaintiff's expert's deposition. Before taking Widmer's deposition, defense counsel agreed to reimburse the plaintiff for Widmer's expenses.
Defendants request $129.35 for Widmer's round trip mileage between Fargo and Bismarck; $107.76 for motel and meal expenses; and $643.50 for Widmer's time.
Witness fees and allowances are recoverable as a cost under 28 U.S.C. § 1920(3). Absent other explicit statutory authority, non-court appointed expert witnesses are compensated like any other witness. See 28 U.S.C. § 1821. The taxable costs for such experts are limited to their testimonial services and subject to the statutory fees and allowances found in 28 U.S.C. § 1821. West Virginia Univ. Hosp., Inc., v. Casey, 499 U.S. 83, 87 (1991); Pinkham v. Camex, Inc., 84 F.3d 292, 295 (8th Cir. 1996). Contrary to plaintiff's assertion, witness fees and allowances are recoverable for attendance at a deposition. See 28 U.S.C. § 1821 (a)(1).
The question here is the appropriate amount for such fees and allowances. Defendants suggest that since they agreed to reimburse plaintiff for Widmer's actual expenses, his actual expenses are recoverable by them as a prevailing party in a costs award. This, however, is not the case. In Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460 (11th Cir. 1996), the court faced a similar request. The district court in Morrison concluded that despite the limits of § 1821(b), the winning party was entitled to reimbursement for the actual fees charged by the losing party's expert witnesses. Id. at 463. The Eleventh Circuit disagreed. Id. In so doing, the court explained that the Supreme Court's direction in Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987) regarding expert fees was contrary to the district court's conclusion. Crawford established that "when a prevailing party seeks reimbursement for fees paid to its own expert witnesses, a federal court is bound by the limit of § 1821(b), absent contract or explicit statutory authority to the contrary." 482 U.S. at 439. The court determined that the rule in Crawford also applied to the circumstances in Morrison. Morrison, 97 F.3d at 463. Consequently, the court concluded, in essence, that unless there is a contract or statutory authority providing otherwise, all non-court appointed experts are limited to the $40.00 per day witness fee of § 1821(b). This Court finds the logic of Morrison persuasive. Since neither exception applies here, defendants may only recover the statutory $40.00 per day witness fee.
The Court makes two points clear. First, although defendants agreed to reimburse plaintiff for the expenses related to Widmer's deposition, there is no suggestion that plaintiff agreed to indemnify defendants as to these expenses. Second, this is not a case where the losing party stipulated that it would pay the actual expenses of the prevailing party's expert witness.
In light of the above, the Court concludes that defendants are entitled to recover witness fees for September 7th, and 8th of 2000. See 28 U.S.C. § 1821(b) (witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance). The Court also awards Widmer's mileage expenses in the amount of $129.35, and motel and meal expenses in the amount of $107.76 to defendants.
In sum the following amounts are awarded:
Court Reporter Fees:
Brian Olander Deposition 1 and 2 ....... $1353.75
Harris Widmer Deposition ............... $1009.70
Expert Witness Fees:
Harris Widmer (2 days) ................. $80.00
Mileage expense and allowances ......... $237.11
Total .................................. $2680.56
IT IS SO ORDERED.