Long v. Alabama Department of Human Resources et al(JOINT ASSIGN)(MAG+)

Filing 86

OPINION AND ORDER that: (1) Plaintiff James Long's 82 Objection to the 80 Bill of Costs is sustained and his 84 Motion to Strike Excess Witness Costs is granted to the extent that $1,835.00 of the requested costs are disallowed and &# 036;5,259.40 of the requested costs are allowed. (2) Costs in the amount of $5,259.40 are taxed against plaintiff Long, for which execution may issue. Signed by Honorable Judge Myron H. Thompson on 5/19/2015. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JAMES LONG,
Plaintiff,
v.
ALABAMA DEPARTMENT OF
HUMAN RESOURCES, et al.,
Defendants.

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CIVIL ACTION NO.
2:13cv176-MHT
(WO)

OPINION AND ORDER
Plaintiff

James

Long

filed

this

lawsuit

against

defendants Alabama Department of Human Resources, Nancy
Buckner, and Sharon E. Ficquette, asserting that he was
retaliated against and ultimately fired for obeying a
subpoena

in

a

co-worker’s

employment-discrimination

case against the Department in violation of his First
Amendment rights as well as his rights under Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e
amended,

et
42

seq.,

the

U.S.C.

Civil
§ 1981,

Rights
and

Act

the

of

1866,

Alabama

as

State

Employees Protection Act, 1975 Ala. Code § 36-26A-1, et
seq.
On January 30, 2015, this court issued an opinion
and order granting summary judgment in favor of the
defendants on Long’s federal claims; dismissing Long’s
state-law claim without prejudice;* and ordering costs
*

The court takes this opportunity to clarify its
reasoning in dismissing Long’s state-law claim with
leave to refile in state court. See Long v. Alabama
Dep't of Human Res., 2015 WL 2345240, at *1 (M.D. Ala.
Jan. 30, 2015) (Thompson, J.).
Long’s complaint
appeared to allege a state-law claim against two state
employees in both their official and individual
capacities. The official-capacity aspect of the claim
would have been barred by Eleventh Amendment immunity,
as explained in Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89 (1984).
However, at the
on-the-record pretrial conference held on January 29,
2015, Long’s counsel clarified that Long was pursuing
the state-law claim against the state employees in only
their individual capacities.
Further, the parties
agreed that, should summary judgment be granted in
favor of the defendants on the federal claims, the
court could dismiss the individual-capacity state-law
claim to allow for refiling in state court and that the
statute of limitations on the claim was tolled during
the pendency of the case in federal court. Because the
state-law claim raised unsettled issues of state law
and because summary judgment was being entered on all
of
the
claims
upon
which
the
court’s
original
jurisdiction had been based, the court dismissed the
(footnote continued)
2

taxed

against

Long.

Long

v.

Alabama

Dep't

of

Human

Res., 2015 WL 2345240, at *1 (M.D. Ala. Jan. 30, 2015)
(Thompson, J.).

This cause is now before the court on

the defendants’ bill of costs and on Long’s objection
to, and motion to strike, excess witness costs.

state-law claim pursuant to 28 U.S.C. § 1367(c)(1) &
(3) and (d). Graham v. State Farm Mutual Insurance Co.,
193 F.3d 1274, 1282 (11th Cir. 1999) (“If no federal
claim survives summary judgment, the court sees no
reason why the other claims should not be dismissed or
remanded
pursuant
to
28
U.S.C.
§ 1367(c)(3).”);
Dunavant v. Sirote & Permutt, P.C., 2014 WL 2885483, at
*12 (S.D. Ala. 2014) (Steele, C.J.) (the preference for
dismissal of state claims under 28 U.S.C. § 1367(c)(3)
“also applies when the federal claims are eliminated on
motion for summary judgment”), aff'd,
2015 WL 525536
(11th Cir. 2015).
See also Jinks v. Richland County,
S.C., 538 U.S. 456 (2003) (holding, without directly
deciding whether 28 U.S.C. § 1367(c)(3) applies when
federal claims are eliminated on summary judgment, that
§ 1367(d) tolled state statute of limitations on
state-law claim where federal court had resolved
federal claims on summary judgment); Bradley Scott
Shannon, A Summary Judgment Is Not a Dismissal!, 56
Drake
L.Rev.
1,
12
(2007)
(“[F]ederal
courts
overwhelmingly have held, pursuant to § 1367(c)(3),
that jurisdiction of supplemental claims may be
declined following a grant of summary judgment as to a
plaintiff's original claims.”) (collecting cases).
3

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 attorneys’
fees--should be allowed to the prevailing party.”

In

their bill of costs, the defendants seek to recover a
total of $ 7,094.40 for the following costs:
(1) Fees for service of summons and subpoena:
$ 35.00;
(2) Fees
for
printed
or
electronically
recorded transcripts necessarily obtained
for use in the case: $ 4,488.00;
(3) Fees for witnesses: $ 1,926.20; and
(4) Fees for exemplification and the costs of
making copies of any materials where the
copies are necessarily obtained for use in
the case: $ 645.20.
Long
$ 1,835.00

moves
in

to

excess

strike,
witness

and

objects

costs

for

to,

only

Frank

Gogan

because the charged $ 1,875.00 was $ 1,835.00 over the
statutory maximum of $ 40.00 per day plus mileage.

The

defendants do not contest this objection and motion to
strike.
4

The clerk taxed $ 1,926.20 in witness costs, which
can be broken down into $ 51.20 paid to Carolyn Rawls
and $ 1,875.00 to Gogan.
mileage.

None of Gogan’s fee was for

28 U.S.C. § 1821 limits the attendance fee to

$ 40.00 per day.

Because the defendants do not contend

Gogan attended for more than one day and because they
do

not

contest

the

motion

to

strike

and

objection,

Long’s motion to strike will be granted, his objection
will be sustained, and the witness fee for Gogan will
be reduced from $ 1,875.00 to $ 40.00.
For the foregoing reasons, and upon consideration
of Long’s motion to strike, and objection to, excess
witness costs, the court concludes that costs should be
allowed in the amount of $ 5,259.40 and disallowed in
the amount of $ 1,835.00, as follows:
Requested
Fees for
service
Fees for
transcripts
Fees for
witnesses

Disallowed

Allowed

$ 35.00

$ 0

$ 35.00

$ 4,488.00

$ 0

$ 4,488.00

$ 1,926.20

$ 1,835.00

$ 91.20

5

Fees for
exemplification
and copies
TOTAL

$ 645.20

$ 0

$ 645.20

$ 7,094.40

$ 1,835.00

$ 5,259.40

***
Accordingly, it is ORDERED that:
(1) Plaintiff James Long’s objection (doc. no. 82)
to the bill of costs (doc. no. 80) is sustained and his
motion to strike excess witness costs (doc. no. 84) is
granted to the extent that $ 1,835.00 of the requested
costs are disallowed and $ 5,259.40 of the requested
costs are allowed.
(2) Costs in the amount of $ 5,259.40 are taxed
against plaintiff Long, for which execution may issue.
DONE, this the 19th day of May, 2015.
/s/ Myron H. Thompson___
UNITED STATES DISTRICT JUDGE

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