Hunter et al v. Santa Fe Protective Services, Inc.

Filing 112

OPINION AND ORDER directing as follows: (1) the plfs' 104 objection to costs bill is sustained to the extent that defendant Santa Fe Protective Services, Inc.'s costs bill of $7,444.11 is reduced by the following amounts: $206.7 3 and $443.56, for a total reduction of $650.29; the objection is overruled in all other respects; (2) costs in the amount of $6,793.82 are therefore taxed against the plaintiffs. Signed by Honorable Judge Myron H. Thompson on 6/19/12. (djy, )

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

JEWEL HUNTER, et al.,

)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
SANTA FE PROTECTIVE
SERVICES, INC.,
Defendant.

CIVIL ACTION NO.
2:09cv1155-MHT
(WO)

OPINION AND ORDER
This cause is now before the court on the plaintiffs’
objection to defendant Santa Fe Protective Services, Inc.
bill of costs.

The objection will be sustained in part

and overruled in part.

I.
The

plaintiffs,

who

applied

for

security-guard

positions with Santa Fe, brought this lawsuit on behalf
of themselves and all others similarly situated, charging
that Santa Fe discriminated against them on the basis of

age, in violation of the Age Discrimination in Employment
Act of 1967 (ADEA), 29 U.S.C. §§ 621–634.
asserted

both

impact’ claims.
§ 626(c).

‘disparate

treatment’

The plaintiffs
and

‘disparate

Jurisdiction is proper under 29 U.S.C.

The court granted summary judgment in favor of

Santa Fe, Hunter v. Santa Fe Protective Servs., Inc., 822
F. Supp. 2d 1238 (M.D. Ala. 2011) (Thompson, J.), and
costs were taxed against the plaintiffs.

Santa Fe filed

a bill of costs for $ 7,444.11, and the plaintiffs have
objected to that bill.

II.
Rule 54 of the Federal Rules of Civil Procedure
allows for the taxation of costs, other than attorneys’
fees, to a prevailing party as a matter of course.

The

court looks to 28 U.S.C. § 1920 to determine which costs
may be taxed.

Crawford Fitting Co. v. J.T. Gibbons,

Inc., 482 U.S. 437, 440-45 (1987).

2

Section 1920 allows

for taxation of deposition costs, 28 U.S.C. § 1920(2),
and docket fees.

28 U.S.C. § 1920(5).

The plaintiffs’ objection falls into four categories:
(1) the depositions of the 17 named plaintiffs in the
lawsuit; (2) the deposition of Mark Liming, Santa Fe’s
Vice President; (3) additional deposition expenses; and
(4) docket fees.

A.
First, the plaintiffs argue that the depositions of
the named plaintiffs were (1) not necessarily obtained
for use in this case and (2) “improperly taken or unduly
prolonged.”

Pl.

Obj.

(Doc.

No.

plaintiffs’ arguments are meritless.

104)

at

4.

The

As stated, the

named plaintiffs alleged, under both disparate-impact and
disparate-treatment theories, that Santa Fe discriminated
against them on account of their age.

Investigating each

plaintiff’s background and personal history with Santa Fe
was certainly necessary to the suit and, unsurprisingly,

3

these depositions were used in support of Santa Fe’s
motion for summary judgment.

Admittedly, this case was

disposed of prior to trial, on the basis of Santa Fe’s
motion for summary judgment.
fatal

to

Santa

Fe’s

bill

However, this fact is not
for

costs.

Section

1920

provides that, “A judge or clerk of any court of the
United States may tax as costs the following: ... (2)
Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case.”
the

fact

that

a

court

disposes

of

the

Therefore,
case

at

the

summary-judgment stage is no impediment to an award of
costs, provided that the costs were reasonably necessary
for use in the case.

Blevins v. Heilig-Meyers Corp., 184

F.R.D. 663, 666 (M.D. Ala. 1999) (Thompson, J.).

The

court is convinced, and so finds, that the plaintiffs’
depositions were “necessarily obtained for use in the
case.”

1

1. The plaintiffs point out that Santa Fe’s briefs
for summary judgment did not cite heavily to the
plaintiffs’ depositions. However, that these depositions
(continued...)
4

The plaintiffs’ argument that the depositions were
either “unduly prolonged” or “improperly taken” is also
without merit.

The plaintiffs’ argument boils down to

the assertion that Santa Fe should not have asked each
plaintiff the same questions about Fort Rucker generally,
including each plaintiff’s employment history at Fort
Rucker under the employer from whom Santa Fe took over
and whether each plaintiff previously took and passed a
physical-fitness

test

under

this

former

employer.

Because the new physical-fitness test used by Santa Fe
was the employment policy the plaintiffs alleged violated
1(...continued)
were not cited heavily in Santa Fe’s briefs is not
dispositive.
“The introduction of a deposition in a
summary judgment motion or at trial is not a prerequisite
for finding that it was necessary to take that
deposition. The proper inquiry is whether the deposition
was ‘reasonably necessary’ to the case at the time it was
taken, not whether it was used in a motion or in court.”
Henderson v. Home Depot U.S.A., Inc., 2006 WL 4978430, at
*3 (M.D. Fla. 2006) (Bucklew, J.) (citing Cengr v.
Fusibond Piping Sys., Inc., 135 F.3d 445, 455 (7th Cir.
1998)).
Under the “proper inquiry,” the depositions
taken here were “necessarily obtained for use in the
case,” 28 U.S.C. § 1920(2); moreover, they supplied (and
supported) the factual predicate upon which the summaryjudgment motions were decided.
5

their rights under the ADEA, this information from the
viewpoint of each plaintiff was certainly not unduly
repetitive; this information was central to issues in the
case as a whole as well as at summary judgment, and Santa
Fe reasonably wanted to know each plaintiff’s take on the
information, especially given that the case was based not
only on a theory of disparate impact but on a theory of
intentional disparate treatment as well.

In addition,

most of the depositions ranged between 60 and 70 pages,
and were conducted in two hours or less.

The subject and

length of each deposition was most reasonable.

B.
Second, the plaintiffs argue that Santa Fe cannot
recover

the

cost

of

Vice

President

Mark

Liming’s

deposition because it was taken for Santa Fe’s mere
convenience.
merely

for

Admittedly, if a deposition were taken
convenience,

to

aid

in

a

more

thorough

preparation of the case, or for purpose of investigation

6

only, the costs would not be recoverable.
F.R.D. at 666.

Blevins, 184

However, here Liming’s deposition was not

taken for mere convenience.

The deposition was taken in

response to the plaintiffs’ notice under Federal Rule of
Civil

Procedure

30(b)(6),

corporation

to

testify

behalf

on

designate
of

a
an

the

rule

which

officer

or

corporation

as

obligates

a

director

to

a

whole.

Compliance with Rule 30 was not a matter of convenience.
Moreover, the plaintiffs’ convenience argument, which
assumes

that,

since

Liming

was

an

employee

of

the

company, there could be no reason to depose him, is
wrong.
company

Just because an individual is an employee of the
and

the

company

has

access

to

what

that

individual might say does not mean that obtaining his
sworn,

admissible

statements

convenience in litigation.

is

a

matter

of

mere

Instead, a party must still

make that information available to the court in some
form, and where the court has a summary-judgment motion
pending the information must be in the form of a sworn

7

statement

(through

deposition),

affidavit,

for

declaration,

parties’

pleadings

assertions of fact are insufficient.

or

or

even

general

See Fed. R. Civ. P.

56(c)-(e); Celotex Corp. v. Catrett, 478 U.S. 317, 324
(1986); Graham v. State Farm Mut. Ins. Co., 193 F.3d
1274, 1282 (11th Cir. 1999).
that

many

of

the

summary-judgment
deposition.

facts

ruling

Indeed, it is noteworthy

relied
were

upon

in

derived

the

from

court’s
Liming’s

See, e.g., Hunter, 822 F.Supp.2d at 1244-

1245, 1250-1252.
In the alternative, the plaintiffs argue that the
cost of Liming’s deposition should be reduced because it
was obtained and used, by agreement of the parties, in
another case, Willis v. Santa Fe Protective Services,
2:09cv1154

(Watkins,

C.J.).

Santa

Fe

argues

that,

because it did not recover the cost of this deposition in
the other case, it should be able to recover for the
entire cost of Liming’s deposition in this case.

The

court finds that the plaintiffs should “not bear the

8

entire cost of a deposition that covered issues both in
the [Willis] case and in this case.”

Hall v. Lowder

Realty Co., Inc., 263 F. Supp. 2d 1352, 1370 (M.D. Ala.
2003) (Thompson, J.).

The plaintiffs ask that the cost

of Liming’s deposition, which (including exhibits) was
137 pages long and cost $ 345.41, be reduced by $ 250.35,
because 27 pages (including exhibits) related exclusively
to the Willis case.

This is just a little too much.

Instead, with each page at roughly $ 2.52 ($ 345.41 ÷
137), the court will subtract the cost of the Willis
pages ($ 2.52 x 27 = $ 68.04), split the remainder
($ 345.41 - 68.04 = $ 277.37) in half ($ 277.37 ÷ 2 =
$ 138.69), and reduce the taxable cost by the sum of half
the total without the Willis pages, which is a reduction
of $ 206.73 ($ 138.69 + 68.04).

C.
Third,
deposition

the

plaintiffs

costs

for

request

“delivery

9

a

reduction

fees,

in

condensed

transcripts and disks or data drives.”
No. 104) at 2.

Pl. Obj. (Doc.

Because Santa Fe “does not object to

reducing the cost award by ... the amount allocated to
the delivery fees, data drives, and condensed transcript
costs,” Def. Reply (doc. no. 107) at 6, the court makes
no substantive ruling on whether the law requires such a
reduction; instead, on the basis of this concession, the
court is left to determine which costs fall within this
group.

The plaintiffs seek a reduction of $ 2,237.56,

which is too high.

The plaintiffs apparently reach this

number by including the half-day per diem fees, which
were

charged

depositions.

to

have

the

court

reporters

take

the

Because these fees were part of the expense

for the taking of the depositions, the plaintiffs are not
entitled to a reduction for them.

Santa Fe calculates

the reduction, based upon delivery fees, data drives, and
condensed transcript costs, at $ 379.

This number,

however, is too low, but appears to result from a simple
error

in

calculation

related

10

to

the

Loe

and

Kamide

depositions,

which

were

done

by

a

reporting

service

different from the one that took the other depositions
and which reported fees on a different type of invoice.
The $ 379 figure comes from the sum of (1) the condensed
transcript, disk, and drive costs for the remaining 18
depositions, which total $ 357.06 (there were no delivery
charges for these depositions), and (2) the $ 22.00
delivery

charge

for

the

($ 357.06 + 22 = $ 379.06).

Loe

and

Kamide

depositions

Santa Fe’s number, however,

excludes the $64.50 “exhibit copying/scanning/burn to CD”
charge on the Loe and Kamide invoice, which is the same
as that for the disk and drives on the other invoices.
Invoice

(Doc.

No.

101)

at

14.

Accordingly,

the

deposition costs should be reduced by the sum of these
numbers, $ 443.56, to reflect this charge ($ 379.06 +
$ 64.50 = $ 443.56).

The remaining costs are for the

depositions and are allowable.

11

D.
Fourth,

the

plaintiffs

argue

that

Santa

Fe

is

entitled to only $ 55 in docket fees, not the $ 70 it
requested.

The

parties

agree

that,

at

$

2.50

a

deposition, Santa Fe is entitled to $ 50 in docket fees
for the 20 depositions entered in this case.
U.S.C. § 1923(a).

See 28

The $ 15 disparity derives from the

parties’ dispute over whether Santa Fe is due $ 5 or,
instead,

$

20

under

§

1923(a),

which

provides

that

“docket fees ... may be taxed as costs as follows:

$ 20

on trial or final hearing ...; [and] ... $ 5 on motion
for judgment and other proceedings on recognizances.”
Id.
The law is well-settled that, because, where entry of
summary judgment resolves all issues in the case, thereby
making it a final, appealable order, it is a “final
hearing” to which the $ 20 fee applies.

See, e.g.,

Horacek v. Eberly, 2006 WL 2844170, at *3 (E.D. Mich.
Sept. 29, 2006) (Hood, J.) (collecting cases); Berryman
v. Epp, 884 F. Supp. 242, 245-46 (E.D. Mich. 1995)
12

(Duggan, J.) (explaining why the $ 20 fee applies in a
case, like this one, where summary judgment was entered
on all issues in the case and was therefore a final,
appealable order); Mikel v. Kerr, 64 F.R.D. 93, 95 (E.D.
Okl.

1973)

entered

in

(Daugherty,
this

case

C.J.)

(“The

disposing

of

Summary
all

Judgment

issues

being

appealable constitutes a final hearing within the intent
and meaning of 28 U.S.C. § 1923(a) and as such the
allowance of a $ 20.00 Docket Fee upon final hearing by
the Clerk was proper.”).
In addition, it is equally clear that the $ 5 fee for
a

“motion

for

recognizances”

judgment
does

not

and

other

proceedings

apply

here.

Section

on

1923’s

reference to a “motion for judgment” was substituted in
1948 for the Latin phrase “scire facias” to make § 1923
consistent with changes being simultaneously made to the
Federal Rules of Civil Procedure.

See 29 U.S.C. § 1923

(historical and statutory notes); Miller-Bey v. Hosey,
1994

WL

43454,

(unpublished).

at

*1

(6th

Cir.

Feb.

14,

1994)

Scire facias is a judicial writ “‘founded
13

upon

some

matter

of

record,

such

as

a

judgment

or

recognizance and requiring the person against whom it is
brought to show cause why the party bringing it should
not have advantage of such record.’”

Berryman v. EPP,

884 F. Supp. 242, 246 n.5 (E.D. Mich. 1995) (Duggan, J.)
(quoting Black’s Law Dictionary 1346 (6th ed. 1990)).
The

phrase

implicates

“other

the

same

proceedings
sort

of

on

judgment,

recognizances”
based

upon

a

“preexisting agreement, contract or obligation.” MillerBey, 1994 WL 43454, at *1.

Because this case, an anti-

discrimination suit decided at summary judgment, was not
based upon any sort of writ of “scire facias” or upon a
preexisting obligation, the $ 5 fee is inapplicable.

See

Seaton-El v. Tooms, 1995 WL 723195, at *1 (6th Cir. Dec.
6, 1995) (holding similarly); Fox v. Bay City, 2007 WL
1377929, at *2 (E.D. Mich. 2007) (Rosen, J.) (concluding
that, because the “present action and the underlying
summary judgment motion do not involve any such writ,”
the defendants were “not entitled to the $ 5 fee”).
Santa Fe is therefore entitled to the $ 70 ($ 50 for the
14

20 depositions and $ 20 taxable “on trial or final
hearing”).

***

Accordingly, it is ORDERED as follows:
(1) The plaintiffs’ objection to costs bill (doc. no.
104) is sustained to the extent that defendant Santa Fe
Protective Services, Inc.’s costs bill of $ 7,444.11

is

reduced by the following amounts: $ 206.73 and $ 443.56,
for a total reduction of $ 650.29.

The objection is

overruled in all other respects.
(2) Costs in the amount of $ 6,793.82 ($ 7,444.11 $ 650.29) are therefore taxed against the plaintiffs.
DONE, this the 19th day of June, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE