Opinion
Civil Action No. SA-00-CA-0144 NN
March 31, 2002
ORDER GRANTING MOTION TO REDUCE AND GRANTING BILL OF COSTS IN
PART AND DENYING IN PART
Pending before me are the City's request for the entry of its bill of costs as "the prevailing party," pursuant 28 U.S.C. § 1920, in the amount of $32,089.93, plaintiffs' responses which include a motion to reduce the defendant's proposed bill of costs sought by the City, and the defendant's response (docket entries 181, 183, 184 and 185). For the reasons set forth below and consistent with this Order, I hereby GRANT plaintiffs' motion to reduce, and GRANT IN PART and DENY IN PART the City's request for an entry of its bill of costs and expenses.
Defendant as the prevailing party after trial of this lawsuit, requests that I award costs and expenses pursuant to 28 U.S.C. § 1920, listing 102 items of expense. Documentation in support of its request, as well as argument on several of the contested matters has been submitted.
Plaintiffs oppose the motion, arguing that their indigency, the disparity between their financial situation and that of defendant, their honest intentions in pursuing this lawsuit, defendant's conduct in defending the case, and the nature of the rights they sought to protect by bringing this lawsuit, warrant denial of defendant's motion. They further argue that they should be entitled to an immunity from these costs as former city workers who, if they were defending a suit, would be so protected. Alternatively, plaintiffs ask that costs be apportioned or reduced significantly, as many of the items of expense are not recoverable under 28 U.S.C. § 1920.
Taxation of costs is authorized by Fed.R.Civ.P. 54(d) and governed by 28 U.S.C. § 1920. Section 1920 allows prevailing parties to recover taxable costs of court as a matter of course, unless the court directs otherwise. Taxable costs include: (1) fees of the clerk and marshal; (2) fees of the court reporter for any part of a transcript "necessarily obtained" for use in the case, including both trial and deposition transcripts; (3) fees and disbursements for printing; (4) fees and disbursements for witnesses; (5) fees for the exemplification and copies of papers necessarily obtained for use in the case; (6) docket fees under 28 U.S.C. § 1923; and (7) compensation of court-appointed experts and interpreters, salaries, fees, expenses, and costs of special interpretation services under 28 U.S.C. § 1828. The federal courts may only award those costs articulated in section 1920 absent explicit statutory or contractual authorization to the contrary. In this regard, fee awards must be sufficiently documented so as to allow the court to assess the reasonableness of the cost item as well as insure that the item falls within one of the narrowly defined areas of reimbursement set forth in section 1920.
§ 1920(2).
§ 1920(3).
§ 1920(3).
§ 1920(4).
§ 1920(5).
§ 1920(6).
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 444-45 (1987). See also Mota v. The University of Texas Houston Health Science Center, 261 F.3d 512, 529 fn.59 (5th Cir. 2001).
NLFC, Inc. v. Devcom Mid-America, Inc., 916 F. Supp. 751, 763 (N.D.Ill. 1996)
Courts have observed that costs should be awarded in all but the exceptional case. Indigency of the losing party is a factor considered in some instances, such as where plaintiff is "of such modest means that it would be an injustice or inequitable" to enter a cost award. However, inability to pay does not automatically warrant setting aside an otherwise documented fee award. The Ninth Circuit recognizes that where the losing party filed suit to vindicate important rights and where an award might discourage future plaintiffs from bringing similar important cases, the court has discretion to deny the award of costs, however the Fifth Circuit has not had occasion to address this possible exception. Clearly, the nature of the suit cannot alone justify denial of an award of costs or every civil rights plaintiff would be exempt from costs — a conclusion not supported by the civil rights statutes and cases construing same. Finally, neither the plaintiff's good faith nor the relative wealth of the plaintiff and defendant is a proper consideration.
In re Paoli R.R. Yard PCB Litigation, 221 F.3d 449, 463-464 (3rd Cir. 2000), citing Cherry v. Champion Int'l Corp., 186 F.3d 442, 447 (4th Cir. 1999).
Otherwise, every losing party who qualified for in forma pauperis status would automatically be exempt from entry of a cost award; a result contrary to 28 U.S.C. § 1915(f)(1). See In re Paoli R.R. Yard PCB Litigation, 221 F.3d at 463; See Burroughs v. Hills, 741 F.2d 1525, 1538 (7th Cir. 1984) (concurrence by J. Posner).
See e.g., Stanley v. University of Southern California, 178 F.3d 1069, 1080 (9th Cir. 1999); but see, Burroughs v. Hills, 741 F.2d at 1538 .
In re Paoli R.R. Yard PCB Litigation, 221 F.3d at 463-67.
Considering these exceptions to the otherwise general rule, in light of the arguments made by plaintiffs, I find that plaintiffs have not demonstrated that an award of costs would be unjust or inequitable. Although plaintiffs allege that they are persons of modest means, they did not file an affidavit of their current financial condition to support their arguments. Documentation of these allegations are critical to my assessment of their argument. Neither their good faith in initiating and litigating this lawsuit, nor the comparative financial condition of the defendant, nor their plea for extension of certain immunities available to city employees when defending similar claims — none of these arguments warrant a departure from the general rule favoring an award of costs to the prevailing party.
With these principles in mind, I turn to the specific items of expense which defendant, as prevailing party, has requested and to which plaintiffs have objected:
Item 2: This is a copying charge for unknown documents from defendant's litigation file, made for outside counsel who was hired to represent an individual defendant after that defendant requested independent representation. The charge was obviously incurred not for the use of the City of San Antonio, but for another defendant who was subsequently dismissed by agreement of the parties. It is not recoverable.
Items 7,8, 9: These items are for subpoenas and costs associated with obtaining medical records of plaintiffs' physicians. While defendant argues that this expense is clearly taxable, it did not reference a particular subsection of 1920 specifically allowing these expenses and I find none. Accordingly, these are denied.
Items 10, 22, 26,29,30,31,32, 49, 50, 81: These items include (10) the transcription of Eddie Gray's deposition (which was apparently audiotaped initially), (22) duplication of an unknown videotape deposition, (26 and 29) transcriptions of an audiotape of a motion to quash and civil service hearings, as well as 2 copies of same and 2 additional tapes of same, (30-32) transcriptions and copies of various interviews with plaintiffs and others, (49) duplication of a video deposition of a Dr. David Guerra, (50) a video deposition of Dr. Guerra, and (81) one copy of 5 separate video depositions (Norbert Schnieder, Tony Trevino, Rocky Granda, Ray Diaz and Eloy Lopez) at $40.00 each. Case authority suggests that the costs of depositions and copies may be recoverable under section 1920 if "necessarily obtained for use in the trial." However, if obtained for the mere convenience of counsel, or for investigative purposes, and not for trial or trial preparation, they are not recoverable. Defendant has failed to articulate precisely how these items were used for trial purposes; they are therefore denied. Further, defendant has failed to show how the transcriptions, particularly of the administrative hearings, interviews, and prior discovery related hearings in this case, were "necessarily obtained for use in trial." Accordingly, each of these items is denied.
Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993), cert. denied, 510 U.S. 1195 (1994).
Id; Fogleman v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991).
Items 25, 34, 35, 52, 54, 55, 61, 66, 73 and 74: These items are apparently copying charges for discovery items and items made for the court. However, defendant has failed to describe what items were copied, for what purpose, and importantly, has failed to link these copying charges with the "necessarily obtained for use in the trial" requirement. Further, I note that some of these charges were billed to Jones, Kurth, which represented a co-defendant at or near the time these charges were incurred, which presents the question of whether the copies were for defendant City of San Antonio, or for others. For these reasons reimbursement of these items is also denied.
Items 27 and 60: These items are for expert witness fees and as such are clearly disallowed under 28 U.S.C. § 1920. Items 95, 97, 98, 99, 100, 101, 102 : These items are for copying of trial exhibits for the court and opposing counsel, pursuant to court order, as well as enlargements of certain trial exhibits (item 97, 98, and 101). The enlargements are not recoverable under section 1920. The copying charges are potentially allowable, however, once again, defendant failed to describe with any particularity what each of these bills is for. Undoubtedly, some of the copies were for purposes of trial; but others were undoubtedly for the convenience of some or all of the three attorneys representing defendant at trial. When the court is unable to "determine whether the copies in question were reasonably necessary for use in the case, the claim for costs should be denied." The record here provides me with an inadequate basis to assess the reasonableness of the costs involved or the necessity of all the photocopies. Therefore, recovery will be denied.
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. at 439.
Coats v. Penrod Drilling Corp., 5 F.3d at 891.
Items 99 and 100 are for 4 and 3 separate sets of the documents.
NLFC, Inc. v. Devcom Mid-America, Inc., 916 F. Supp. at 763. See also Collins v. Gorman, 96 F.3d 1057, 1058 (7th Cir. 1996).
As a final matter, plaintiffs have asked that if an award is entered, the liability of the two plaintiffs be apportioned such that the cost award be entered against plaintiff Rosales only. This request is based on the limited claims made by plaintiff Fuentes, as compared to those pursued by plaintiff Rosales.
While I have authority to apportion the award of costs, I find that plaintiffs have not presented sufficient argument or evidence to demonstrate that their claims were so dissimilar or that the costs requested were connected to a greater or lesser extent with either of the individual plaintiffs. Therefore, their request is denied.
See In re Paoli R.R. Yard PCB Litigation, 221 F.3d at 468-472.
Accordingly, for the reasons stated above and consistent with the above discussion, it is ORDERED that plaintiffs' motion to reduce is GRANTED, and defendant's request for costs is GRANTED IN PART AND DENIED IN PART such that defendant is awarded costs of $18,324.00, with the award imposed jointly and severally against the plaintiffs.