Hunter et al v. Santa Fe Protective Services, Inc.
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.,
SANTA FE PROTECTIVE
CIVIL ACTION NO.
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.
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.
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.
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.
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).
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.
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
plaintiffs’ arguments are meritless.
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.
plaintiff’s background and personal history with Santa Fe
was certainly necessary to the suit and, unsurprisingly,
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.
However, this fact is not
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.”
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.).
court is convinced, and so finds, that the plaintiffs’
depositions were “necessarily obtained for use in the
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
The plaintiffs’ argument that the depositions were
either “unduly prolonged” or “improperly taken” is also
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
Because the new physical-fitness test used by Santa Fe
was the employment policy the plaintiffs alleged violated
were not cited heavily in Santa Fe’s briefs is not
“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.
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.
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.
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.
Second, the plaintiffs argue that Santa Fe cannot
deposition because it was taken for Santa Fe’s mere
Admittedly, if a deposition were taken
preparation of the case, or for purpose of investigation
only, the costs would not be recoverable.
F.R.D. at 666.
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
Compliance with Rule 30 was not a matter of convenience.
Moreover, the plaintiffs’ convenience argument, which
company, there could be no reason to depose him, is
Just because an individual is an employee of the
individual might say does not mean that obtaining his
convenience in litigation.
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
assertions of fact are insufficient.
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).
Indeed, it is noteworthy
See, e.g., Hunter, 822 F.Supp.2d at 1244-
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,
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.
court finds that the plaintiffs should “not bear the
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).
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
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
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.
however, is too low, but appears to result from a simple
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
($ 357.06 + 22 = $ 379.06).
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.
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.
entitled to only $ 55 in docket fees, not the $ 70 it
deposition, Santa Fe is entitled to $ 50 in docket fees
for the 20 depositions entered in this case.
U.S.C. § 1923(a).
The $ 15 disparity derives from the
parties’ dispute over whether Santa Fe is due $ 5 or,
“docket fees ... may be taxed as costs as follows:
on trial or final hearing ...; [and] ... $ 5 on motion
for judgment and other proceedings on recognizances.”
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.
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)
(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.
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
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,
Scire facias is a judicial writ “‘founded
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)).
“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.
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
20 depositions and $ 20 taxable “on trial or final
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
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
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