Summary
assessing costs in favor of prevailing defendant following trial on plaintiff's claim for gender discrimination
Summary of this case from Patterson v. Celadon Trucking Services, Inc.Opinion
Civil Action No. SA-99-CA-0589 NN
September 12, 2002
ORDER ADDRESSING DEFENDANT CITY OF SAN ANTONIO'S REOUEST TO ENTER BILL OF COSTS AND MOTION FOR AN AWARD OF ATTORNEYS' FEES
This Title VII gender discrimination and retaliation case was tried before a jury on October 23-26, 2001. At the close of plaintiff's case-in-chief, defendant moved for a directed verdict. I orally denied the request on October 24, 2001, finding that plaintiff provided sufficient prima facie evidence for the jury to decide the ultimate question in the case, that is, whether defendant had intentionally discriminated against her on the bases of her gender and/or for having previously engaged in protected activity. The jury, after deliberating for two days, returned a verdict for the defendant. Consistent with the jury's verdict, I entered final judgment for the defendant on November 1, 2001. Docket Entry 69. On December 7, 2001, the defendant filed a request to enter a bill of costs, and also moved for an award of attorneys' fees. Docket Entry 72.
Although not specifically stated, it appears that defendant is seeking an attorneys' fee award in the total amount of $53,860.65. According to defendant, this amount represents the hours expended by trial counsel at her regular hourly rate (263.87 hours at $150.00 per hour = $39,580.05) as well as the hours expended by three paralegals at their regular hourly rate (238.01 hours at $60.00 per hour = $14,280.6). Docket Entry 72 at Exhibits D-G.
In addressing first defendant's request for an award of attorneys' fees, the plaintiff has ably articulated the reasons why such an award should not be granted in this case. Docket Entry 73, at 1-2 (citing Christianburg Garment Co. v. E.E.O.C., 434 U.S. 412, 422 (1978); United States v. Mississippi, 921 F.2d 604, 609 (5th Cir. 1991); and Myers v. City of West Monroe, 211 F.3d 289, 293 (5th Cir. 2000)). I will adopt plaintiffs reasons and deny the request. It is well-settled that a prevailing defendant is entitled to attorneys' fees in a civil rights action "only when a plaintiff's underlying claim is frivolous, unreasonable, or groundless." Based on the jury trial of this cause, the denial of defendant's motion for a directed verdict and the two-day jury deliberation, plaintiff's claim was not "frivolous, unreasonable or groundless," and the defendant is not entitled to an award of attorneys' fees. While not entitled to attorneys' fees, defendant, however, is entitled to a reduced award of taxable costs.
See also Byers v. Dallas Morning News, Inc., 209 F.3d 419, 430 (5th Cir. 2000) (courts apply a more stringent standard when determining the "prevailing party" for purposes of recovery of attorneys' fees, especially when the prevailing party is a defendant in a civil rights action).
Walker v. City of Bogalusa, 168 F.3d 237, 239 (5th Cir. 1999); and Myers, 211 F.3d at 293. This limitation attempts to prevent any chilling effect on the enforcement of civil rights. Furthermore, the award of fees to a prevailing plaintiff is an award against a violator of the law and in favor of the individual chosen by Congress to vindicate an important policy; an award of fees to a prevailing defendant does not present those considerations. See Christianburg Garment Co., 434 U.S. at 419.
Defendant requests the entry of a bill of costs pursuant to 28 U.S.C. § 1920 and FED. R. Civ. P. 54(d). 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 United States Supreme Court has indicated that federal courts may only award those costs articulated in section 1920 absent explicit statutory or contractual authorization to the contrary.
Docket Entry 72, at 1 and Exhibit A. The "prevailing party," for purposes of assessing entitlement to costs, is the party who prevails on a substantial part of the litigation. See Testa v. Village of Mundelein, III., 89 F.3d 443, 447 (7th Cir. 1996).
§ 1920(2). See Manildra Milling Corp. v. Ogilvie Mills, Inc., 76 F.3d 1178, 1184 (Fed. Cir. 1996); Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. ), cert. denied, 510 U.S. 1195 (1994). Section 1920(2) does not include the cost of summarizing depositions. See Zuill v. Shanahan, 80 F.3d 1366, 1371 (9th Cir. 1996), cert. denied, 519 U.S. 1090 (1997).
§ 1920(3). See Shannon v. United States Dept. of Housing and Urban Development, 433 F. Supp. 249, 252 (E.D. Pa. 1977).
§ 1920(3).
§ 1920(4). Included in this category are copies made as part of discovery and the copies of filed documents made for the court. See NLFC, Inc., v. Devcom Mid-America, Inc., 916 F. Supp. 751, 762-63 (N.D. Ill. 1996). Extra copies for the convenience of counsel are not considered necessary for these purposes and therefore not taxed as costs. Id. at 763. See also Haroco, Inc. v. American Nat'l Bank Trust Co. of Chicago, 38 F.3d 1429, 1441 (7th Cir 1994).
§ 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).
According to the bill of costs submitted in this case, defendant seeks to recover costs in the total amount of $1,200.11 for: (1) fees for witnesses in the amount of $197.16, (2) fees for exemplification and copies of paper necessarily obtained for use in the case in the amount of $252.95, and (3) a mediator's fee in the amount of $750.00. Plaintiff has objected to the requested fees for witnesses, by arguing that the appropriate fees is the statutory fee required to be paid to a witness who is subpoenaed to testify, not wages paid to the witness. Plaintiff also objects to the required mediator's fee on the grounds that such fee is not recoverable under Section 1920.16 Both of plaintiff's objections have merit.
Docket Entry 72, at Exhibit A.
Docket Entry 73, at 2.
Absent a contract or explicit statute to the contrary, witness fees, including fees for most expert witnesses (except court-appointed experts), are limited to the amount set forth in 28 U.S.C. § 1821 (currently $40.00 per diem), plus mileage. Defendant's documentation does not reflect that the $197.16 requested is based on the $40.00 per diem plus mileage limitation. In fact, it is unclear how the $197. figure was calculated. Accordingly, defendant's request for costs in this amount is denied.
See Crawford Fitting Co., 482 U.S. at 442.
Plaintiff put the defendant on notice of this deficiency in her response to defendant's motion. Defendant, however, failed to amend and properly substantiate its bill of costs.
Id. at 2-3.
Regarding the requested mediator's fee, I am guided by the district court's decision in State of Kansas ex. rel. Stephan v. Deffenbaugh Industries, Inc., which held that the prevailing party was not entitled to an award of costs for the mediator's fee under § 1920(6). In that case, the court studied the legislative history to § 1920(6) which expressly refers to court-appointed expert witnesses "as permitted by rule 706 of the Federal Rules of Evidence." The court in Deffenbaugh Industries then reasoned that "[a]lthough the mediator may be an "expert in the law," he or she is not a Rule 706 expert witness whose costs are taxable under § 1920(6)." Consistent with this discussion, I will disallow the amount of $750.00, and will award the defendant the total amount of $252.95. This amount represents the requested exemplification and photocopy fees and is one to which plaintiff did not oppose.
154 F.R.D. 269 (D. Kan. 1994), as also relied upon by this court in M Securities Investment, Inc. v. City of San Antonio, No. SA-99-CA-343-WWJ, 2002 WL 1492220, *7 (W.D. Tex. Mar. 26, 2002).
Id. at 270 (citing to H.R. Rep. No. 95-1687, 95th Cong.2d Sess. 13; and National Ore. for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 545 n. 7 (9th Cir. 1987) (court-appointed master not a § 1920(6) expert)).
Id. See also Mota, 261 F.3d 530 ("mediation costs do not fall within the limited category of expenses taxable under Title VII.").
Docket Entry 73.
Accordingly, it is hereby ORDERED that defendant's motion for an award of attorneys' fees (Docket Entry 72) is DENIED in its entirety. Defendant's request for an entry of bill of costs pursuant to 28 U.S.C. § 1920 and FED. R. Civ. P. 54(d)(1) (Docket Entry 72) is GRANTED, IN PART, and a bill of costs is hereby ENTERED on behalf of the defendant in the total amount of $252.95.