Adams v. The City of Montgomery
MEMORANDUM OPINION AND ORDER directing that: (1) the City of Montgomery's 93 MOTION for costs is GRANTED IN PART and DENIED IN PART; (2) plaintiff's 95 objections to the City's Motion for costs are OVERRULED IN PART and SUSTAINED IN PART; and (3) directing the clerk to tax costs against plaintiff Willie Adams and in favor of the City of Montgomery in the amount of $2,313.45. Signed by Chief Judge William Keith Watkins on 7/7/14. (djy, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CITY OF MONTGOMERY,
CITY OF MONTGOMERY, et al.,
CASE NO. 2:11-CV-1122-WKW
CASE NO. 2:12-CV-523-WKW
MEMORANDUM OPINION AND ORDER
This court entered a memorandum opinion and order granting summary
judgment and a final judgment in favor of Defendants on September 27, 2013.
(Docs. # 90, 91.) The Eleventh Circuit Court of Appeals affirmed the judgment on
June 20, 2014. (See Doc. # 101.) The court’s final judgment includes no directive
concerning taxation of costs.
Before the court is Defendant City of Montgomery’s Bill of Costs and
Motion for Costs in which the City seeks $2,595.70.
(Docs. # 92, 93.)
Specifically, the City requests $2,163.45 for transcript expenses and $432.25 for
the cost of making copies. The Bill of Costs and Motion for Costs are supported
by the Affidavit of Attorney Stacy Reed explaining her computation of taxable
Plaintiff Willie Adams opposes the City’s motion. (Doc. # 95.) Plaintiff
asserts that the deposition and trial transcripts for which the City is seeking
reimbursement were not used to support the City’s motion for summary judgment.
Even if the contested transcript expenses are allowable, Plaintiff argues that the
City’s Bill of Costs includes additional expenses related to transcript preparation –
such as copies of exhibits and the provision of disks and mini-transcripts – which
Plaintiff says are non-reimbursable “[l]itigation support material.” (Doc. # 95,
at 2.) Plaintiff also challenges the City’s request for fees for copying expenses
because the copies were unnecessary and made merely for defense counsel’s
convenience. (Doc. # 95, at 2–3.) The City was given an opportunity to file a
reply (see Doc. # 102), but has not done so.
I. STANDARDS FOR TAXING COSTS
Rule 56(d)(1) provides that “costs . . . should be allowed to the prevailing
party” absent some contrary federal statute, federal rule, or court order. Fed. R.
Civ. P. 56(d)(1). Even so, a court retains the discretion to refuse to tax costs.
Congress has provided that the following costs are taxable:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily
obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials
where the copies are 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. Courts are bound by the limitations of 28 U.S.C. § 1920 and
may not allow taxation of additional costs. Crawford Fitting Co. v. J. T. Gibbons,
Inc., 482 U.S. 437, 445 (1987).
The City’s request for costs depends upon
paragraphs (2) and (4) of § 1920.
Costs for deposition or trial transcripts that were not “necessarily obtained
for use in the case” are not recoverable. Blevins v. Heilig-Meyers Corp., 184
F.R.D. 663, 666 (M.D. Ala. 1999) (citing Newman v. A.E. Staley Mfg. Co., 648
F.2d 330, 337 (5th Cir. 1981)). The question is not whether the party requesting
reimbursement of costs ultimately used or cited the transcripts.
Rather, it is
“whether the depositions appeared reasonably necessary at the time they were
taken.” Id. at 667; see also U.S. E.E.O.C v. W&O, Inc., 213 F.3d 600, 622 (11th
Cir. 2000). Deposition costs that are “incurred for convenience, to aid in a more
thorough preparation of the case, or for purpose of investigation only” are not
recoverable. W&O, 213 F.3d at 620. “The burden lies with the challenging party
to show that the depositions were not related to an issue in the case at the time the
deposition was taken.” Powell v. The Home Depot, U.S.A., Inc., No. 07-80435CIV, 2010 WL 4116488, at *6 (S.D. Fla. Sept. 14, 2010), report and
recommendation adopted, No. 07-80435-CIV, 2010 WL 4102933 (S.D. Fla. Oct.
The City seeks its costs for transcripts of trial1 and deposition testimonies by
Plaintiff and Lead Case Defendants James Ivey and Gail Gipson. The City also
obtained transcripts of deposition testimony given by Kim McGough, Chris
Conway, and Thomas Provitt, all of whom were City employees with knowledge
about the circumstances surrounding Plaintiff’s claims.
Plaintiff stresses that the City did not include the deposition transcripts as
part of its evidentiary submissions at summary judgment.
In support of its
summary judgment motion, the City submitted affidavit testimony rather than
deposition testimony, (see Docs. # 36, 37), apparently because it had to meet the
Defendant James Ivey testified at trial in a similar but distinct Title VII discrimination
case filed by Plaintiff against the City, Willie Adams v. The City of Montgomery, No. 2:10-cv924-MHT.
dispositive motion deadline on February 22, 2013, without the benefit of
depositions. (See Doc. # 38, at ¶ 5) (Rule 56(d) motion filed March 12, 2013,
where Plaintiff represented that the witnesses had been unavailable for depositions
because of the trial in Plaintiff’s other civil suit against the City before Judge
Thompson).) Hence, the City obtained the deposition and trial transcripts for
which it now seeks reimbursement after it filed its motion for summary judgment
in February 2013. (See Doc. # 93-2, at 1 (listing dates of transcript requests).)
After the City moved for summary judgment, this court and the Magistrate Judge
granted several extensions of time to permit Plaintiff to conduct discovery and to
allow Plaintiff to respond to the motion for summary judgment. Plaintiff did not
file his response in opposition until August 27, 2013.
In view of the
circumstances, the court concludes that the City’s requests for deposition and trial
transcripts between March and July 2013 were reasonably necessary for use in this
case because summary judgment briefing was not complete, discovery was
ongoing, and it was not yet clear whether any claims would proceed to the trial
scheduled for September 2013.
Therefore, Plaintiff’s objection to the City’s
request for taxation of costs for transcripts is due to be overruled.
Additional Costs Within Transcript Invoices
Plaintiff also objects to an award of costs for additional expenses on court
reporters’ invoices for “copies of exhibits, ASCII disk[s], and mini transcript[s].”
(Doc. # 95, at 2.) Although it may be customary for attorneys to be invoiced for
copies of exhibits, disks, or condensed transcripts, most courts have concluded that
such costs are “for the convenience of . . . attorneys” and are not taxable under
§ 1920. Powell, 2010 WL 4116488, at *10 (collecting cases from federal district
courts). Accordingly, Plaintiff’s objection to taxation of these costs is due to be
sustained, and the City’s request for transcript costs in the amount of $2,163.45
will be reduced by $282.25 to $1,881.20.
The City seeks costs for 1,729 pages of copies at $0.25 per page. (See Doc.
# 93-2, at 2.) The City represents that in each of ten instances, two copies were
made for each of the two City attorneys working on this case, and in three of ten
instances, a third copy was made for the court as a courtesy copy. All of the
documents on the City’s itemized list were filed electronically with the Clerk of the
Court, and therefore, defense counsel received the documents electronically in
PDF format via email. Plaintiff contends that electronic filing eliminated the need
for defense counsel to generate copies for themselves. He argues that copies made
“merely for the convenience of counsel” are not recoverable. (Doc. # 95, at 2–3
(citing Blevins and other cases).)
The case law authorities on which Plaintiff relies are not recent, do not
specifically address Plaintiff’s argument, and do not account for the legal
profession’s shift toward a reliance upon electronic filing and electronic noticing.
In the absence of some authority declaring it unreasonable or unnecessary for
counsel to continue to maintain and rely upon hard copies of case files, Plaintiff’s
objection to the City’s request for copy costs under § 1920(4) is due to be
In accordance with the foregoing findings, it is ORDERED that:
The City’s Motion for Costs (Doc. # 93) is GRANTED IN PART and
DENIED IN PART;
Plaintiff’s Objections to the City’s Motion for Costs (Doc. # 95) are
OVERRULED IN PART and SUSTAINED IN PART; and
The Clerk of the Court is DIRECTED to tax costs against Plaintiff
Willie Adams and in favor of the City of Montgomery in the amount of
DONE this 7th day of July, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
This amount accounts for the City’s adjusted request for $1,881.20 for transcripts and
for $432.25 for copies.
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