Daughtry v. Army Fleet Support LLC et al

Filing 185

OPINION AND ORDER that the 176 Motion to Review the Clerk's Taxation of Cost, filed by plf Rory M. Daughtry, is granted only to the extent that the clerk of court's taxation of costs (doc. nos. 164 , 172 , and 173 ) is allowed and cost s are taxed to plf Daughtry as follows: (a) in the amount of $ 1,000 to dft International Association of Machinists in satisfaction of its 155 Bill of Costs; (b) in the amount of $ 1,000 to dfts ACE American Insurance Company, ESIS, Inc., Michelle Kelton, and Ruth Mann in satisfaction of their 156 Bill of Costs; and (c) in the amount of $ 1,000 to dft Army Fleet Support, LLC, in satisfaction of its 157 Bill of Costs. Signed by Honorable Judge Myron H. Thompson on 2/5/2014. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

RORY M. DAUGHTRY,
Plaintiff,
v.
ARMY FLEET SUPPORT, LLC,
et al.,
Defendants.

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CIVIL ACTION NO.
1:11cv153-MHT
(WO)

OPINION AND ORDER
Plaintiff Rory M. Daughtry has filed a motion to
review the clerk of court’s taxation of costs in favor of
the defendants.
not

taxable

Because some of the claimed costs are
or

insufficiently

supported

and

in

consideration of Daughtry’s indigent status, the motion
will be granted in part.

I. BACKGROUND
In its judgment that accompanied the summary-judgment
opinion finding in favor of the defendants, Daughtry v.
Army Fleet Support, LLC, 925 F.Supp.2d 1277 (M.D. Ala.

2013)

(Thompson,

defendants’

J.),

costs

the
be

court
taxed

ordered
against

that

the

Daughtry.

Subsequently, bills of costs were duly filed by defendant
International

Association

of

Machinists

(“IAM”)

on

February 20, 2013; by defendants ACE American Insurance
Company, ESIS, Inc., Michelle Kelton, and Ruth Mann (“the
ACE defendants”) on March 1, 2013; and by defendant Army
Fleet Support, LLC (“Army Fleet”) on March 1, 2013.
clerk

taxed

costs

against

Daughtry

in

the

The

amounts

requested: $ 4,969.94 for IAM on March 7; $ 4,769.81 for
the ACE defendants on March 19; and $ 9,455.64 for Army
Fleet on March 19.
Daughtry filed an objection to Army Fleet’s costs on
March 14, and the instant motion to review all of the
clerk of court’s taxation of costs on March 25.

In his

motion, he contests some of the individual costs claimed
by the defendants.

He also argues that the court should

not impose costs because he is indigent.

In opposing the

motion, the defendants argue that Daughtry’s objection to

2

the costs is untimely; that all of the claimed costs are
proper; and that Daughtry has failed to establish that he
is indigent.

II. DISCUSSION
A.
The defendants first argue that Daughtry’s motion is
not timely.

Rule 54(d)(1) provides: “The clerk may tax

costs on 14 days’ notice. On motion served within the
next 7 days, the court may review the clerk’s action.”
This portion of the rule was amended in 2009, and its
language is potentially ambiguous.

Previously, the rule

allowed the clerk to tax costs on just one day’s notice,
but the longer 14-day period more starkly presents the
interpretive
“notice.”

question:
One

way

What

to

does

understand

the
the

rule

mean

rule

is

by

that

“notice” refers to the bill of costs that a prevailing
party must file; once that bill is filed and served, the
non-prevailing

party

has

notice.

3

The

other

way

to

understand the rule is that the clerk is supposed to give
notice of the costs she intends to tax.

That is, after

a bill of costs if filed the prevailing party has notice
of the costs the prevailing party seeks, but not what
costs the clerk intends to tax.
In the court’s view, the better reading is the second
one.

It appears the drafters envisioned that the clerk

of court, as the adjudicator in the first instance, would
initially file a notice of what costs she intended to
tax, and then not less than 14 days later would actually
See Excerpt from the Report of the

tax those costs.
Judicial

Conference,

260

F.R.D.

1,

487

(2008)

(“The

increased time period corrects an unrealistic short time
period for the clerk to give notice before taxing costs”)
(emphasis added).

The purpose of that two-week period is

so that a party may challenge the costs the clerk of
court intends to tax.
Committee
period

Notes

provides

to
a

See Fed. R. Civ. P. 54, Advisory

2009
better

Amendments

(“The

opportunity

4

to

new

14-day

prepare

and

present a response”).
taxed

would

then

The party against whom costs are

have

seven

days

after

the

clerk’s

taxation of costs in which to raise an objection with the
court.

Thus, in total that party would have at least 21

days from the notice of intent to tax costs in which to
object; but that period would be longer if the clerk
allowed more that 14 days between notice and actual
See Borom v. Town of Merrillville,

taxation of costs.
857

F.

Supp.

Bokkelen,

J.)

54(d)(1)

does

2d

785,

(“the
not

787-88

7–day

begin

(N.D.

period

until

Ind.

2012)

described

the

actual

in

(Van
Rule

event

of

taxation, which can occur no sooner than 14 days after
the notice”) (emphasis removed).
Here, there was no separate act of noticing and then
taxing; the clerk of court simply taxed the costs.

In

such a situation, the rule is therefore best construed as
giving the party to be taxed 21 days to respond: 14 days
after the clerk’s action of taxing costs as notice, and
then an additional seven days in which to file his

5

motion.
App'x

See Ang v. Coastal Int'l Sec., Inc., 417 F.

836,

838

(11th

Cir.

2011)

(suggesting

that,

“interpreting the rules most favorably” to the party to
be taxed, Rule 54(d)(1) gives at least 21 days after
actual notice in which to file an objection).
In this case, the clerk taxed Daughtry for one bill
of costs on March 7 and for two others on March 19.
Daughtry filed his motion to review the clerk of court’s
taxation of costs on March 25.

Thus, on the court’s

interpretation of Rule 54(d)(1), his filing was timely
and will be considered.

In the alternative, the court

has discretion to consider even an untimely objection to
costs, and will do so in this case.
Federal

Practice

§

54.100[3]

(2013)

See 10 Moore’s
at

54-144

n.24

(collecting cases).

B.
Federal Rule of Civil Procedure 54(d)(1) provides
that, “Unless a federal statute, these rules, or a court

6

order provides otherwise, costs--other than attorney's
fees--should be allowed to the prevailing party.”

The

costs a court may award under Rule 54 are limited to
those specified in 28 U.S.C. § 1920.
Cnty.,

492

F.

App'x

991,

996

Watson v. Lake

(11th

Cir.

2012).

Section 1920 authorizes costs for clerk and marshal fees;
transcript fees; witness and copying fees; docket fees;
and

compensation

for

court-appointed

experts

and

interpreters.
Daughtry first challenges costs submitted by Army
Fleet for travel expenses.
in

costs

for

“Travel

Army Fleet claimed $ 1,797.33

to

depositions,

witnesses, court hearings.”
(Doc. No. 157) at 3.
by § 1920.

meetings

with

Army Fleet Bill of Costs

Travel expenses are not authorized

See Mock v. Bell Helicopter Textron, Inc.,

456 F. App'x 799, 802 (11th Cir. 2012); Sorbo v. United
Parcel

Serv.,

432

(collecting cases).

F.3d

1169,

1180

(10th

Cir.

2005)

The court will therefore disallow

Army Fleet’s request for travel costs.

7

Daughtry also

challenges $ 1,594.13 in “Other counsel travel costs,
subsistence expenses,” citing pages 22-24 of Army Fleet’s
bill of costs.
2-3.

Pfs. Motion to Review (Doc. No. 176) at

However, it is clear to the court that the travel

expense forms submitted by Army Fleet at pages 22 to 24
of its bill of costs are documentation of part of the
$ 1,797.33 it requests, rather than a separate request.
Next, Daughtry challenges Army Fleet’s claimed costs
for copying.

In its bill of costs, Army Fleet claims

$ 2,233.02 for copies.

Section 1920 authorizes costs for

copies “necessarily obtained” for the case.

But the

party seeking costs must establish that the particular
copies claimed were necessary for the litigation.

See

Watson, 492 F. App'x at 998 (remanding to district court
because

record

that

‘color

copies,’ but

indicated
did

“‘B

not

claim

for

costs);

W

further

documents were actually copied”
support

&

printing’ and
explain

what

was insufficient to

Morrison

v.

Reichhold

Chemicals, Inc., 97 F.3d 460, 465 (11th Cir. 1996) (lack

8

of evidence that copy of video deposition was necessary
required remand).

In this case, Army Fleet has offered

billing records and invoices for copies.

In some cases,

those invoices do not even indicate what documents were
copied.

See Army Fleet Bill of Costs (Doc. No. 157) at

16, 18-20.

In others, there is some indication of the

nature of the documents, but no explanation as to why
they were necessary.

See id. at 15, 17.

Although Army

Fleet responded to Daughtry’s objection to costs, it did
not in any way address the necessity of the copies.

See

Army Fleet Response to Motion to Review (Doc. No. 178).
When a party claiming costs “fails to respond to the
objections to a bill of costs by coming forward with
evidence showing the nature of the documents copied and
how they were used or intended for use in the case, the
court may disallow costs.”

Coleman v. Roadway Express,

158 F. Supp. 2d 1304, 1310 (M.D. Ala. 2001) (Thompson,
J.)

(internal

quotation

omitted).

The

court

will

disallow Army Fleet’s claim for $ 2,233.02 in costs

9

because it has not demonstrated they were necessary and
so taxable under § 1920.
Daughtry does not specifically mention the other
defendants’ claimed copying costs.

However, he does

raise an argument regarding copies that applies with
equal

force

to

the

other

defendants.

The

other

defendants were on notice regarding this argument, and
IAM filed an opposition to this motion (albeit on other
grounds).
179).

IAM Response to Motion to Review (Doc. No.

This court will therefore exercise its discretion

and consider the claims for copying costs in the other
two bills of costs.

IAM submitted a claim for $ 666.39

in copying costs but also failed to explain why those
copies were necessary.
155) at 3-5.

See IAM Bill of Costs (Doc. No.

Similarly, the ACE defendants requested

$ 471.71 in copying costs but did not explain why those
copies were necessary.
156) at 4-7.

See ACE Bill of Costs (Doc. No.

The court will therefore disallow these

claimed costs.

10

Daughtry next challenges Army Fleet’s request for
$ 151.95 for overnight delivery charges.

Section 1920

does not authorize costs for postage or for similar
Watson, 492 F. App'x at 997

overnight delivery charges.
(Ҥ

1920

does

not

authorize

recovery

of

costs

for

shipment...”); Duckworth v. Whisenant, 97 F.3d 1393, 1399
(11th Cir. 1996) (postage is not recoverable).

The court

will disallow the overnight delivery costs.
The

remaining

transcripts,

which

costs
are

recoverable under § 1920.

are

all

generally

for
but

deposition
not

always

See Watson, 492 F. App'x at

996-7; EEOC v. W & O, Inc., 213 F.3d 600, 620–21 (11th
Cir. 2000).

Daughtry does not challenge the necessity of

any of the depositions.

Rather, he first notes an

arithmetical error in Army Fleet’s bill of costs.

Army

Fleet responds that it did make an error, but that the
error resulted in Army Fleet seeking a lower amount than
it was actually due.

Army Fleet notes that it continues

to seek only the lower amount.

The court agrees that the

error benefitted Daughtry, and will consider only the
11

lower amount that Army Fleet seeks.

Second, Daughtry

points out that Army Fleet is seeking significantly more
in deposition costs than the other defendants.
Fleet

responds

that

its

costs

are

Army

substantiated

by

invoices, and that its costs are likely higher because it
noticed the longest deposition, namely Daughtry’s.

The

court finds no reason to doubt this explanation, and
overrules Daughtry’s objection to Army Fleet’s request
regarding depositions.
Therefore,

after

accounting

for

improperly

taxed

costs, the court will consider the following modified
requests: Army Fleet in the amount of $ 5,273.34; IAM

in

the amount of $ 4,303.55; and the ACE defendants in the
amount

of

$

4,298.10.

These

amounts

total

to

$ 13,874.99.

C.
Daughtry next argues that costs should not be taxed
against him because he is indigent.

12

The defendants

respond

that

Daughtry

has

offered

insufficient

documentation of his indigent status in this case.
Rule 54 establishes a “strong presumption” that costs
will be taxed in favor of the prevailing party.
v. Crosby, 480 F.3d 1265, 1276 (11th Cir. 2007).

Mathews
While

a district court has some discretion to deny costs in the
face of that presumption, the Eleventh Circuit, sitting
en banc, has made it clear that the court’s discretion is
“not unfettered.”

Chapman v. AI Transp., 229 F.3d 1012,

1039 (11th Cir. 2000).

“To defeat the presumption and

deny full costs, a district court must have and state a
sound basis for doing so.”

Id.

In Chapman, the court held that “a non-prevailing
party’s financial status is a factor that a district
court may, but need not, consider in its award of costs
pursuant to Rule 54(d).”

Id.

But it instructed that a

district court considering such indigency as a basis for
denying costs “should require substantial documentation
of a true inability to pay.”

13

Id.

In this case, Daughtry has submitted an affidavit
regarding his inability to pay the costs taxed against
him.

Affidavit (Doc. No. 176-1).

unemployed

and

that

he

faces

He notes that he is
homelessness

because

foreclosure proceedings have been initiated against him.
He further notes that he is without health insurance and
has been unable to purchase necessary medication.
This

documentation

is

more

substantial

than

the

evidence the court in Chapman indicated was insufficient.
Immediately

after

directing

courts

to

“require

substantial documentation,” the Chapman court cited two
cases.

In the first, McGill v. Faulkner, 18 F.3d 456,

459 (7th Cir. 1994), the non-prevailing party claimed he
was unable to pay simply because he was a prisoner.
McGill

court

noted

that

being

necessarily make one indigent.

a

prisoner

did

The
not

In the second, Cherry v.

Champion Int'l Corp., 186 F.3d 442, 447 (4th Cir. 1999),
the non-prevailing party had no independent income or
property in her own name but had access to significant
marital property.

Again, this was insufficient to show
14

inability to pay.

In this case, by contrast, Daughtry

has submitted an affidavit detailing his dire financial
situation, and the court finds that he is indigent.
Nevertheless, even in a “rare” case such as this one
in which it is appropriate to consider the non-prevailing
party’s financial situation, Chapman, 229 F.3d at 1039,
the Eleventh Circuit has stated that “a court may not
decline to award any costs at all.”

Id.

This is because

the cost-shifting provision of Rule 54 serves the purpose
of deterring non-meritorious claims and defenses, and “no
fee will provide no deterrence.”

Id. (internal quotation

omitted).
This court concludes that, taking Daughtry’s indigent
status into account, a total taxation of costs of $ 3,000
is sufficient to provide deterrence to both Daughtry
specifically

and

litigants

generally

pursuit of non-meritorious cases.

regarding

the

The court will grant

$ 1,000 in costs to each of the three sets of defendants
who filed bills of costs.

15

***
Accordingly, it is ORDERED that the motion to review
the clerk’s taxation of cost (doc. no. 176), filed by
plaintiff Rory M. Daughtry, is granted only to the extent
that the clerk of court’s taxation of costs (doc. nos.
164, 172, and 173) is allowed and costs are taxed to
plaintiff
(a)

Daughtry as follows:
in

the

amount

of

$

1,000

to

defendant

International Association of Machinists in satisfaction
of its bill of costs (doc. no. 155);
(b) in the amount of $ 1,000 to defendants ACE
American Insurance Company, ESIS, Inc., Michelle Kelton,
and Ruth Mann in satisfaction of their bill of costs
(doc. no. 156); and
(c) in the amount of $ 1,000 to defendant Army Fleet
Support, LLC, in satisfaction of its bill of costs (doc.
no. 157).
DONE, this the 5th day of February, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE