Jones v. Novartis Pharmaceuticals Company
Filing
209
MEMORANDUM OPINION AND ORDER re 204 Opposition to Bill Of Costs and 198 Bill of Costs filed by Ernesteen Jones. For the reasons stated, the Bill of Costs is due to be GRANTED in part and otherwise DENIED. NPC is hereby AWARDED $8,035.25 in costs. Signed by Judge Virginia Emerson Hopkins on 7/26/2018. (KWC)
FILED
2018 Jul-26 PM 02:54
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ERNESTEEN JONES,
)
)
Plaintiff,
)
)
v.
) Case No.: 2:13-CV-624-VEH
)
NOVARTIS PHARMACEUTICALS )
CORPORATION,
)
)
Defendant.
)
MEMORANDUM OPINION AND ORDER
I.
INTRODUCTION
Before the Court is Novartis Pharmaceuticals Corporation’s (“NPC”) Bill of
Costs. (Doc. 198). Also before the Court is Plaintiff Ernesteen Jones’s Objections to
the Bill of Costs (the “Objections”). (Doc. 204). The Court had originally stayed
ruling on the Bill of Costs pending the results of Ms. Jones’s appeal. (Doc. 205). On
May 31, 2018, the Eleventh Circuit issued its opinion affirming this Court’s rulings.
(Doc. 208-1). Accordingly, the Court now returns to address the pending Bill of Costs.
For the reasons stated in this opinion, they are due to be GRANTED in part and
otherwise DENIED.
II.
STANDARD
“The costs that may be awarded to prevailing parties in lawsuits brought in
federal court are set forth in 28 U.S.C. § 1920.” Taniguchi v. Kan Pacific Saipan, Ltd.,
566 U.S. 560, 562 (2012). 28 U.S.C. § 1920 states as follows:
A judge or clerk of any court of the United States may tax as costs the
following:
(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.
A bill of costs shall be filed in the case and, upon allowance, included in the
judgment or decree.
28 U.S.C. § 1920.
“Federal Rule of Civil Procedure 54(d) gives courts the discretion to award
costs to prevailing parties.” Taniguchi, 566 U.S. at 565; see also FED. R. CIV. P. 54(d)
(“Unless a federal statute, these rules, or a court order provides otherwise, costs--other
2
than attorney's fees--should be allowed to the prevailing party.”). “[The United States
Supreme Court has] made clear that the ‘discretion granted by Rule 54(d) is not a
power to evade’ the specific categories of costs set forth by Congress.” Taniguchi, 566
U.S. at 572 (quoting Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442
(1987)). “Taxable costs are limited to relatively minor, incidental expenses as is
evident from § 1920, which lists such items as clerk fees, court reporter fees, expenses
for printing and witnesses, expenses for exemplification and copies, docket fees, and
compensation of court-appointed experts.” Id. at 573. “[A] district court needs a
‘sound basis’ to overcome the strong presumption that a prevailing party is entitled
to costs.” Mathews v. Crosby, 480 F.3d 1265, 1277 (11th Cir. 2007).
III.
ANALYSIS
To begin with, NPC asks the Court for an award of $13,382.78 in costs. (See
Doc. 198 at 1). Ms. Jones does not object to $2,037.30 of those costs. (See Doc. 204
at 13). They are $11,345.48 apart. The Court will only focus on the disputed costs.
A.
Transcript Costs
Ms. Jones argues that “NPC made no showing that all of the deposition
transcripts and video recordings were necessarily obtained for use in this case.” (See
Doc. 204 at 6) (emphasis omitted). This section addresses those objections.
First, Ms. Jones contests the costs for deposition transcripts. (See Doc. 204 at
3
6-9). The Eleventh Circuit has opined on taxing these costs:
Taxation of deposition costs is authorized by § 1920(2). See
United States v. Kolesar, 313 F.2d 835, 837–38 (5th Cir.1963) (“Though
1920(2) does not specifically mention a deposition, ... depositions are
included by implication in the phrase ‘stenographic transcript.’ ”).
“[W]here the deposition costs were merely incurred for convenience, to
aid in thorough preparation, or for purposes of investigation only, the
costs are not recoverable.” Goodwall Const. Co. v. Beers Const. Co., 824
F.Supp. 1044, 1066 (N.D.Ga.1992), aff'd, 991 F.2d 751 (Fed.Cir.1993).
The question of whether the costs for a deposition are taxable depends
on the factual question of whether the deposition was wholly or partially
“ ‘necessarily obtained for use in the case.’ ” Newman v. A.E. Staley Mfg.
Co., 648 F.2d 330, 337 (5th Cir. Unit B 1981) (quoting § 1920(2)).
U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 620-21 (11th Cir. 2000). “The burden falls
on the losing party to show that specific deposition costs or a particular court
reporter's fee was not necessary for use in the case or that the deposition was not
related to an issue present in the case at the time of the deposition.” Carribean I
Owners’ Ass’n, Inc. v. Great American Ins. Co. of New York, No. 07-0829-KD-B,
2009 WL 2150903, *3 (S.D. Ala. July 13, 2009) (citing sources) (DuBose, J.).
Ms. Jones objects that NPC is claiming costs for copies of transcripts, as
opposed to the originals. (See Doc. 204 at 7). The disputed depositions include those
of witnesses Traylor, Worthen, Rechtweg, Pyron, Hitchcock, Carl, and Jaffee. (See
id.). The Court notes that NPC’s attorney has signed a declaration under penalty of
perjury stating that the claimed deposition transcript costs are “the original deposition
transcripts.” (See Doc. 198 at 5). The invoices for the transcripts of Traylor, Worthen,
4
Rechtweg, Pyron, Hitchcock,1 Carl, and Jaffee are all from Freedom Reporting. (See
id. at 11-23). While the invoices call the transcripts a “copy”, common sense dictates
that these are the sole transcripts received by NPC’s attorney after the deposition (not
excess copies). If this assumption is incorrect, NPC’s attorney is under a duty to
inform the Court immediately – and to explain the discrepancy on the declaration.
Ms. Jones objects to Terri Smith’s deposition because she argues it was not
relied on in the course of the litigation. (See Doc. 204 at 7). The Court cannot locate
where Terri Smith’s deposition was used in this case. For that reason, these $448.25
in costs have not been shown to have been necessarily incurred.
Additionally, “[Ms. Jones] further objects to the [Karen] Hitchcock deposition
because NPC did not rely on it to support its [Daubert] motions or summary judgment
motion.” (See Doc. 204 at 7 n.3). Here as well, the Court cannot locate where the
Hitchcock deposition was used in this case. For that reason, the $224.55 in costs have
not been shown to have been necessarily incurred.
Next, the Court addresses the video depositions. As an initial matter, “the
taxation for the cost of video depositions is allowable under § 1920.” Morrison v.
Reichold Chems., 97 F.3d 460, 465 (11th Cir. 1996). However, the party requesting
the costs should give an “explanation of why it was necessary to obtain a copy of the
1
The Court will further address the Hitchcock deposition in this Order.
5
video tapes for use in the case.” See id. Here, Ms. Jones objects to $4,424.80 in video
deposition fees because she argues that “[t]he videotapes were not displayed to the
Court during the proceeding and were not used in determining the summary judgment
motion or for any other purpose.” (See Doc. 204 at 8). NPC’s affidavit fails to say
where the videos were submitted to Court and how they were necessary. (See Doc.
198 at 5). Accordingly, the Court declines to award the fees from the video
depositions.2
Finally, Ms. Jones objects to “two $60 appearance charges for the depositions
of Dr. Ricketts and Dr. Morris.” (Doc. 204 at 8). Courts vary on whether to tax these
costs. See Moore v. Shands Jacksonville Med. Ctr., Inc., No. 3:09-cv-298-J-34PDB,
2014 WL 12652475, *5 (M.D. Fla. Apr. 3, 2014). The Court agrees with those courts
that do not award these costs. See Bostick v. State Farm Mut. Auto. Ins. Co., No. 8:16cv-1400-T-33AAS, 2018 U.S. Dist. LEXIS 39057 (M.D. Fla. Mar. 8, 2018) (citing
sources) (“Court reporter attendance fees are not included in Section 1920(2) and,
therefore, cannot be awarded.”). The two $60 appearance fees will not be taxed.
B.
Copying Costs
Ms. Jones also argues that “NPC made no showing that the exemplification and
2
Ms. Jones objects to the $1,192.30 from the David W. Feigal, Jr. deposition on the
grounds that it was a video deposition. (See Doc. 204 at 8). However, the invoice does not reflect
that it was a video deposition. (See Doc. 198 at 26). For that reason, these costs will be allowed.
6
cost of making copies were necessarily obtained for use in the case.” (See Doc. 204
at 9). She objects to $1,322.23 in copying costs. (See id.). In particular, she argues that
“[NPC] has failed to meet its burden to explain how the medical records were used or
intended for use in this case.” (See id.).
“[I]n evaluating copying costs, the court should consider whether the prevailing
party could have reasonably believed that it was necessary to copy the papers at
issue.” U.S. E.E.O.C., 213 F.3d at 623. “The party seeking recovery of photocopying
costs must come forward with evidence showing the nature of the documents copied,
including how they were used or intended to be used in the case.” Helms v. Wal-Mart
Stores, Inc., 808 F. Supp. 1568, 1570 (N.D. Ga. 1992) (citing sources). “A prevailing
party may not simply make unsubstantiated claims that such documents were
necessary, since the prevailing party alone knows for what purpose the copies were
made.” Id. (citing sources).
NPC’s affidavit is entirely conclusory about why these copies were necessary.
(See Doc. 198 at 5). The invoice itself is silent on how many copies were made. (See
id. at 28-29). This is not enough.
Additionally, NPC’s affidavit notes that the $1,322.23 figure “include[s] fees
for certification or proof of non-existence of documents.” (See id. at 5). The Court has
reviewed the plain text of the statute. Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124
7
S.Ct. 1023, 1030 (2004) (citing sources) (“It is well established that ‘when the statute's
language is plain, the sole function of the courts—at least where the disposition
required by the text is not absurd—is to enforce it according to its terms.’”). There is
no indication that §1920(4) permits the Court to award fees for “proof of nonexistence of documents” when the statute contemplates copies that were “obtained.”
See 28 U.S.C. § 1920(4) (“Fees for exemplification and the costs of making copies of
any materials where the copies are necessarily obtained for use in the case”) (emphasis
added).
For these reasons, the Court declines to grant NPC $1,322.23 in copying costs.
C.
Summary Chart
For the reader’s benefit, the Court has included a chart at the end of this
Memorandum Opinion.
IV.
CONCLUSION
The Court has carefully reviewed NPC’s Bill of Costs and Ms. Jones’s
Objections. For the reasons stated in this Memorandum Opinion and Order, the Bill
of Costs is due to be GRANTED in part and otherwise DENIED. NPC is hereby
AWARDED $8,035.25 in costs.
8
DONE and ORDERED this the 26th day of July, 2018.
VIRGINIA EMERSON HOPKINS
United States District Judge
9
DESCRIPTION
REQUESTED
AMOUNT
AMOUNT
JONES
CONSENTS TO
AWARDED
AMOUNT
Fees of the Clerk
Filing Fee
$ 350
$ 350
$ 350
Fees for printed or electronically recorded transcripts necessarily obtained for use in the case
Thomas B. Traylor, M.D.
$ 428.10
$0
$ 428.10
James V. Worthen, M.D. (video)
$ 210
$0
$0
James V. Worthen, M.D.
$ 596.75
$0
$ 596.75
Terri Smith
$ 448.25
$0
$0
Ernestine Jones
$ 905.80
$ 905.80
$ 905.80
Dr. Timothy M. Ricketts
$ 520.10
$ 460.10
$ 460.10
Enoch C. Morris, M.D.
$ 381.40
$ 321.40
$ 321.40
Christina Rechtweg
$ 789.95
$0
$ 789.95
Kelly Pyron
$ 743.90
$0
$ 743.90
Christina Rechtweg
$ 1,093.60
$0
$ 1,093.60
Karen Hitchcock
$ 224.55
$0
$0
Kevin Carl
$ 406.10
$0
$ 406.10
Kevin Carl (video)
$ 262.50
$0
$0
Dr. Kenneth A. Jaffe
$ 747.25
$0
$ 747.25
Dr. William Banks Hinshaw, Jr.
(video)
$ 1,470.00
$0
$0
Wayne Taylor, Ph.D. (video)
$ 1,290.00
$0
$0
David W. Feigal, Jr.
$ 1,192.30
$0
$ 1,192.30
Fees for exemplification and the costs of making copies of any materials where the copies are
necessarily obtained for use in the case
Copying
$ 1,322.23
$0
$0
TOTAL
$ 13,382.78
$ 2,037.30
$ 8,035.25
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?