Daughtry v. Army Fleet Support LLC et al
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,
ARMY FLEET SUPPORT, LLC,
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff Rory M. Daughtry has filed a motion to
review the clerk of court’s taxation of costs in favor of
Because some of the claimed costs are
consideration of Daughtry’s indigent status, the motion
will be granted in part.
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.
Subsequently, bills of costs were duly filed by defendant
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.
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.
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
the costs is untimely; that all of the claimed costs are
proper; and that Daughtry has failed to establish that he
The defendants first argue that Daughtry’s motion is
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
“notice” refers to the bill of costs that a prevailing
party must file; once that bill is filed and served, the
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
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.
increased time period corrects an unrealistic short time
period for the clerk to give notice before taxing costs”)
The purpose of that two-week period is
so that a party may challenge the costs the clerk of
court intends to tax.
See Fed. R. Civ. P. 54, Advisory
present a response”).
The party against whom costs are
taxation of costs in which to raise an objection with the
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.
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.
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
See Ang v. Coastal Int'l Sec., Inc., 417 F.
“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.
See 10 Moore’s
Federal Rule of Civil Procedure 54(d)(1) provides
that, “Unless a federal statute, these rules, or a court
order provides otherwise, costs--other than attorney's
fees--should be allowed to the prevailing party.”
costs a court may award under Rule 54 are limited to
those specified in 28 U.S.C. § 1920.
Watson v. Lake
Section 1920 authorizes costs for clerk and marshal fees;
transcript fees; witness and copying fees; docket fees;
Daughtry first challenges costs submitted by Army
Fleet for travel expenses.
Army Fleet claimed $ 1,797.33
witnesses, court hearings.”
(Doc. No. 157) at 3.
by § 1920.
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
The court will therefore disallow
Army Fleet’s request for travel costs.
challenges $ 1,594.13 in “Other counsel travel costs,
subsistence expenses,” citing pages 22-24 of Army Fleet’s
bill of costs.
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
In its bill of costs, Army Fleet claims
$ 2,233.02 for copies.
Section 1920 authorizes costs for
copies “necessarily obtained” for the case.
party seeking costs must establish that the particular
copies claimed were necessary for the litigation.
Watson, 492 F. App'x at 998 (remanding to district court
documents were actually copied”
was insufficient to
Chemicals, Inc., 97 F.3d 460, 465 (11th Cir. 1996) (lack
of evidence that copy of video deposition was necessary
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
See Army Fleet Bill of Costs (Doc. No. 157) at
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.
Fleet responded to Daughtry’s objection to costs, it did
not in any way address the necessity of the copies.
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,
disallow Army Fleet’s claim for $ 2,233.02 in costs
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
defendants were on notice regarding this argument, and
IAM filed an opposition to this motion (albeit on other
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
Daughtry next challenges Army Fleet’s request for
$ 151.95 for overnight delivery charges.
does not authorize costs for postage or for similar
Watson, 492 F. App'x at 997
overnight delivery charges.
shipment...”); Duckworth v. Whisenant, 97 F.3d 1393, 1399
(11th Cir. 1996) (postage is not recoverable).
will disallow the overnight delivery costs.
recoverable under § 1920.
See Watson, 492 F. App'x at
996-7; EEOC v. W & O, Inc., 213 F.3d 600, 620–21 (11th
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.
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
lower amount that Army Fleet seeks.
points out that Army Fleet is seeking significantly more
in deposition costs than the other defendants.
invoices, and that its costs are likely higher because it
noticed the longest deposition, namely Daughtry’s.
court finds no reason to doubt this explanation, and
overrules Daughtry’s objection to Army Fleet’s request
costs, the court will consider the following modified
requests: Army Fleet in the amount of $ 5,273.34; IAM
the amount of $ 4,303.55; and the ACE defendants in the
Daughtry next argues that costs should not be taxed
against him because he is indigent.
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).
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
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.”
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).”
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.”
In this case, Daughtry has submitted an affidavit
regarding his inability to pay the costs taxed against
Affidavit (Doc. No. 176-1).
He notes that he is
foreclosure proceedings have been initiated against him.
He further notes that he is without health insurance and
has been unable to purchase necessary medication.
evidence the court in Chapman indicated was insufficient.
substantial documentation,” the Chapman court cited two
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.
necessarily make one indigent.
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
Again, this was insufficient to show
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.”
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
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
pursuit of non-meritorious cases.
The court will grant
$ 1,000 in costs to each of the three sets of defendants
who filed bills of costs.
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
Daughtry as follows:
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.
DONE, this the 5th day of February, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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