Opinion
No. 98-2511-DJW
October, 1999
MEMORANDUM AND ORDER
A trial to the Court was held in this matter from January 3, 2000 through January 5, 2000, after which judgement was entered in favor of Defendants on all claims. Defendant Tresprop subsequently filed a bill of costs requesting the Clerk to tax costs in the amount of $4,993.54 against Plaintiff Ramada Franchise Systems (doc. 128). More specifically, Defendant requests costs be assessed against Plaintiff for court reporter fees, copying fees and mediator fees.
Plaintiff objects to the bill of costs on three grounds: (1) counsel for Defendant failed to consult with counsel for Plaintiff before submitting the bill of costs; (2) the deposition transcript of Max Lopez was not introduced into evidence and thus court reporter fees associated with his deposition should not be taxed; and (3) costs representing mediator fees should not be taxed.
Discussion
Taxation of costs is authorized by Fed.R.Civ.P. 54(d) and governed by 28 U.S.C. § 1920. The applicable local rule regarding taxation of costs is D.Kan. Rule 54.1. Although consultation is required by D.Kan. Rule 54.2 before a motion to award statutory attorney's fees is made pursuant to Fed.R.Civ.P. 54(d)(2), the local rules do not require a party to consult before requesting costs pursuant to Fed.R.Civ.P. 54(d)(1). Accordingly, Plaintiff's first objection is without merit.
The Court now turns to Plaintiff's second objection regarding costs associated with the deposition of Max Lopez. The standard for determining whether deposition expenses are taxable as costs is whether the deposition was necessary to the case. 28 U.S.C. § 1920. Plaintiff asserts the deposition was not necessary for use in this case. In support of such assertion, Plaintiff states Defendants did not use Mr. Lopez's deposition in its dispositive briefing or at trial. In response to Plaintiff's assertion, Defendant merely states that "Mr. Lopez witnessed the misrepresentations by Ramada's representatives and therefore his testimony was directly relevant to the issues determined in the case."
Plaintiff also accurately asserts that Mr. Lopez did not testifiy at trial in person.
"Though use at trial by counsel or the court readily demonstrates necessity, if materials or services are reasonable necessary for use in the case even though not used at trial, the court can find necessity." Sharon v. Yellow Freight System, Inc., 985 F. Supp. 1274, 1276 (D.Kan. 1997) (citing U.S. Indus., Inc. v. Touche Ross Co., 854 F.2d 1223, 1246 (10th Cir. 1988)). The taxing of deposition costs will not be allowed, however, if the deposition is "purely investigatory in nature." Id. (citing Ortega v. City of Kansas City, Kan., 659 F. Supp. 1201, 1219 (D.Kan. 1987), rev'd on other grounds, 875 F.2d 1497 (10th Cir. 1989). "The best practice is to view the necessity of the depositions in light of the facts known to counsel at the time they were taken. Id. Notably, "the burden is on the prevailing [parties] to establish the amount of compensable costs and expenses to which they are entitled. Prevailing parties necessarily assume the risks inherent in a failure to meet that burden." Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1258 (10th Cir. 1998) (citing Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1208 (10th Cir. 1986)).
Upon consideration of Defendant's rather sketchy explanation as to how the testimony of Mr. Lopez is (or was) relevant to the claims at issue in this matter, the Court finds Defendant has failed to carry its burden in establishing that, at the time Mr. Lopez was deposed, the deposition was necessary for use in this case. Accordingly, the costs associated with the deposition of Mr. Lopez will not be taxed to Plaintiff.
Plaintiff's third objection — that mediation fees are not taxable under 28 U.S.C. § 1920 — is conceded by Defendant. Thus, the costs associated with mediation will not be taxed to Plaintiff.
Based on the discussion above, the Court hereby grants Defendant's request for taxation of costs to Plaintiff as follows:
(1) Fees of the court reporter: $2,693.30
(2) Fees for copies: $1,559.04
TOTAL $4,252.34
IT IS SO ORDERED.