Opinion
Civil Action # H-96-3626
April 29, 2002
ORDER
Pending before the Court is the Bill of Costs filed by Defendants Rockwell Space Operations Company (Document #249) and the Motion to Disallow Bill of Costs filed by Plaintiff William E. Whipple (Document #250). As the prevailing party in the above-entitled case, Defendants request the following costs:
Item Amount Requested
Fees for service of summons and subpoena $120.00
Fees and disbursements for printing $6614.81
Fees for witnesses $7404.72
Other Costs (Oral Depositions) $18,999.76
TOTAL $33,139.29
Federal Rule of Civil Procedure 54(d)(1) provides for an award of costs "to the prevailing party unless the court otherwise directs." FED. R. Civ. P. 54(d)(1). Title 28 U.S.C. § 1920 identifies recoverable costs. A court may decline to award the costs listed in the statute, but may not award costs omitted from the list. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987).
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. 28 U.S.C. § 1920 (1994).
Plaintiff has filed a motion to disallow the bill of costs, stating that the Court should deny Defendants' requested costs because he filed the case in good faith. Rule 54(d)(1) provides that costs " shall be allowed as of course to the prevailing party unless the court otherwise directs." FED. R. Civ. P. 54(d)(1) (emphasis added). The trial court may exercise its discretion in taxing costs, but its decision may be overturned if it abuses that discretion. E.g., Walters v. Roadway Express, Inc., 557 F.2d 521, 526 (5th Cir. 1977). The rule does not prevent a trial court from requiring a prevailing party to bear its own costs, but "the language of the rule reasonably bears the intendment that the prevailing party is prima facie entitled to costs and it is incumbent on the losing party to overcome that presumption . . . (since) denial of costs . . . is in the nature of a penalty for some defection on [defendants'] part in the course of the litigation." Id. (emphasis added) (citing Popeil Bros. v. Schick Elec., Inc., 516 F.2d 772, at 775 (7th Cir. 1975)). Accordingly, when a trial court exacts such a penalty, it should state reasons for its decision. Id. Here, the Court finds no reason to deny Defendants costs as prevailing party. However, the Court determines that some of Defendants' requested costs are unallowable and will reduce the bill of costs accordingly.
First, the Court finds that Defendants have failed to establish that the airfares totaling $4,913.72 for Dale Anderson, Anne DeBriere, Ralph Nash and Mike Stoddard are allowable. The Supreme Court has ruled that 28 U.S.C. § 1920 (3) (the statutory provision allowing for taxation of witness fees) is limited by 28 U.S.C. § 1821 (the statutory provision identifying witness per diem fees). Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987). Section 1821 permits recovery of actual expenses for travel by common carrier, so long as the witness utilizes a common carrier "at the most economical rate reasonably available." 28 U.S.C. § 1821(c)(1). Here, Defendants have requested the following amounts in airfare: $1,713.67 for Anderson; $1,716.67 for DeBriere; $1,205.38 for Nash; and $278.00 for Stoddard. Defendants have not provided sufficient documentation indicating that these airfares constituted the "most economical rates reasonably available" for travel for these witnesses. Therefore, the Court reduces Defendants' witness fees by $4,913.72. See id; see also Datapoint Corp. v. Picturetel Corp., No. 3:93-cv-2381, 1998 WL 401630, at *5-6 (N.D. Tex. 1998).
Second, Defendants requested $18,999.76 in "other costs" (i.e., costs for depositions), which includes $1,472.50 for videotape depositions. In the Fifth Circuit, however, "[t]here is no provision [in § 1920(2)] for videotapes of depositions." Mota v. Univ. of Texas Houston Health Science Ctr., 261 F.3d 512, 529-30 (5th Cir. 2001) (holding that the district court erred in taxing the cost of videotaped depositions); Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1049 (5th Cir. 1998). Accordingly, the Court determines that Defendants' costs must be reduced by $1,472.50 for unallowable videotape deposition costs.
Based on the foregoing analysis, the Court hereby reduces Defendants' taxable costs as follows:
Item Amount Amount Requested Allowed
Fees for service of summons subpoena $120.00 $120.00
Fees and disbursements for printing $6614.81 $6614.81
Fees for witnesses $7404.72 $2491.00
Other Costs (Oral Depositions) $18,999.76 $17,527.26
TOTAL $33,139.29 $26,753.07
ORDERS that as prevailing party in this case, Defendants are entitled to costs in the amount of $26,753.07 assessed against Plaintiff. The Court further
ORDERS that the Motion to Disallow Bill of Costs filed by Plaintiff William E. Whipple (Document #250) is DENIED.