Gadsden Industrial Park LLC v. United States of America, The et al

Filing 160

MEMORANDUM OPINION AND ORDER re 154 Bill of Costs and 156 Plaintiff's objections- The court SUSTAINS the Plaintiff's objections to the Defendants' Bill of Costs and DIRECTS the Clerk to tax $14,075.56 in costs against the Plaintiff and for the Defendants. Signed by Chief Judge Karon O Bowdre on 7/13/17. (SAC )

FILED
2017 Jul-13 AM 10:09
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
GADSDEN INDUSTRIAL PARK, LLC,
Plaintiff,
v.
CMC, INC. and HARSCO
CORPORATION,
Defendants.

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CASE NO.:
4:14-CV-39-KOB

MEMORANDUM OPINION AND ORDER
This matter is before the court on the Defendants’ ABill of Costs@ and the Plaintiff's
objections. (Docs. 154, 156). Because the court lacks the statutory authority to tax the costs
objected to by the Plaintiff, the court SUSTAINS its objections.
I.

BACKGROUND
The court need not recount the protracted history of this litigation. A summary will suffice.
On January 8, 2014, the Plaintiff sued the Defendants, alleging claims for tortious

conversion of private property and negligence. The Defendants moved to dismiss the complaint,
and the court granted the United States’ motion but denied CMC and Harsco's motion. The
remaining Defendants then moved for summary judgment, which the court denied. Finally, the
case proceeded to trial, where the Plaintiff only pursued its conversion claim. At the close of the
Plaintiff's case, the court granted the Defendants’ motion for judgment as a matter of law on the
remaining conversion claim.
When the court entered judgment, it taxed costs against the Plaintiff and for the

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Defendants. See (Doc. 153). The Defendants filed a bill of costs for $26,797.90. See (Doc. 156).
The Plaintiff filed objections to $12,772.34 of those costs, claiming that the costs were not
properly taxable under 28 U.S.C. ' 1920(4). See (Doc. 158).
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 54(d)(1) permits a court to tax costs other than attorney's

fees for a prevailing party. A court's ability to tax costs is limited to the power Congress confers via
statute. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 483 U.S. 437, 445 (1987). Title 28 U.S.C. §
1920(4) grants a judge or clerk of court the power to tax costs Afor exemplification and the costs of
making copies of any materials where the copies are necessarily obtained for use in the case.@
An Aexemplification@ is narrowly defined as Aan official transcript of a public record,
authenticated as a true copy for use as evidence.@ Arcadian Fertilizer, L.P. v. MPW Industrial
Services, Inc., 249 F.3d 1293, 1297 (11th Cir. 2001) (internal quotes omitted).
What precisely qualifies as a cost Aof making copies of any materials@ is less clear. Prior to
2008, ' 1920(4) permitted taxing costs for Acopies of papers.@ The Eleventh Circuit drew a sharp
distinction: costs for copies of paper-like materials were taxable and costs for copying materials
that were not analogous to paper were not. See Arcadian Fertilizer, 249 F.3d at 1296B98 (AUntil
Congress sees fit to amend the language of ' 1920 to include the innovative technologies used in
the production of demonstrative exhibits, computer animations and videotape exhibits are not
taxable because there is no statutory authority.@).
However, the Eleventh Circuit has not decided whether Arcadian Fertilizer was abrogated
by the 2008 amendment to the statute changing the language from Apapers@ to Aany materials.@
District courts considering the question have reached opposite conclusions. Compare Akanthos

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Capital v. Compucredit Holdings, 2 F. Supp. 3d 1306, 1309–12 (N.D. Ga. 2014) (J. Batten)
(finding that the 2008 amendment did not render costs for graphics and technology consulting
services taxable) with Carroll v. Tavern Corp., No. 1:08BcvB2514BTWT, 2011 WL 6337649
(N.D. Ga. Dec. 16, 2011) (J. Thrash) (taxing the cost of production of a videotape).
Without specific guidance from the Eleventh Circuit, the court considers the general
interpretive principles of the statute. The Supreme Court has stated that A[t]axable costs are limited
to relatively minor, incidental expenses . . .@ Taniguchi v. Kan Pacific Saipan, 132 S. Ct. 1997,
2006 (2012) (AOur decision is in keeping with the narrow scope of taxable costs.@).
Given these presumptions, the court is persuaded by Judge Batten's reasoning in Akanthos
Capital: AWithout persuasive guidance, and mindful of the general preference for narrow
construction of the statute, the Court is unwilling to break new ground without new direction from
the Eleventh Circuit.@ 2 F. Supp.3d at 1312. As Judge Batten notes, even if the particular holding
of Arcadian Fertilizer has been abrogated by the 2008 amendment, the case still evidences the
Eleventh Circuit's Ageneral preference for narrow construction of the section.@ Id.
What remains of Arcadian Fertilizer after the 2008 amendment? The amendment did not
affect the Eleventh Circuit's exposition of Aexemplification.@ The amendments did not alter the
language concerning exemplification. Therefore, the Eleventh Circuit's narrow definition of
exemplification as Aan official transcript of a public record@ remains good law and binding
precedent. See Arcadian Fertilizer, 249 F.3d at 1297 (internal quotes omitted).
However, the distinction between copies of paper and non-paper materials drawn by the
Court does not apply to the amended statute. The statute now gives courts the authority to tax costs
for copies of materials other than paper needed for use in the case. Therefore, a cost for copying a
non-paper material is not categorically excluded from being taxable as it would have been
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previously under the interpretation of Arcadian Fertilizer.
The statute imposes two other requirements for the cost of a copy to be taxable. First, and
self-evidentially, it must be a copy. No statutory authority exists for the recovery of costs
associated with the production of original material. Second, the statute requires the cost of the
copies be Anecessarily obtained for use in the case.@
III.

DISCUSSION
The Plaintiff challenges $12,772.34 of the costs listed by the Defendants but does not

object to $14,075.56 of the costs. Specifically, the Plaintiff challenges the Defendants’ costs for
Pro Hac Vice fees, an interactive map trial exhibit, and site photography. Both parties relied on the
map and site photography at trial, and it was a helpful aid to the jury. However, to be taxable, the
statute must support taxing the expense.
A.

Pro Hac Vice Fees

In the Defendants’ Bill of Costs, they seek reimbursement for $150.00 for the pro hac vice
admission fees of three lawyers. The Defendants now concede that such fees are not taxable. See
(Doc. 158 at 1). Therefore, the court SUSTAINS the Plaintiff's objection to taxing the pro hac vice
admission fees as a cost.
B.

Interactive Map Created by FTI Consulting

The Defendants seek reimbursement for $11,195.84 for Aan Interactive Map created by FTI
Consulting used at trial as Defendants' exhibit 72.@ (Doc. 154-2 at 2B3). Although a paper copy is
not required for a cost to be taxable, a copy is still required. Instead, the Defendants seeks
reimbursement for the creation an interactive exhibit, which can hardly be said to be a “relatively
minor, incidental” cost. See Taniguchi v. Kan Pacific Saipan, 132 S. Ct. 1997, 2006 (2012). But
such an exhibit is not a “copy” within the plain meaning of § 1920(4). Neither is the map an
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exemplification, as the Eleventh Circuit has defined an exemplification as Aan official transcript of
a public record.@ Arcadian Fertilizer, 249 F.3d at 1297 (internal quotes omitted). Therefore, the
court SUSTAINS the Plaintiff's objection to this cost because the map does not fall under §
1920(4) as either a copy or exemplification.
C.

Airplane Rental and Videography for Aerial Views of Site

The Defendants also seek $891.00 in reimbursement for an airplane rental and
photographer's fee to capture aerial views of the site. This cost is not taxable because no statutory
authority empowers the court to award such costs. The $891.00 represents the cost of producing
photographs, not the cost of creating copies.
To support taxing this cost, the Defendants cite to Carroll v. Tavern Corp., No.
1:08-CV-2514-TWT, 2011 WL 6337649, at *7 (N.D. Ga. Dec. 16, 2011). In Carroll, the court
allowed taxing the costs of producing photographs and videotapes. However, the court cited no
Eleventh Circuit authority to support its position. Rather, the Carroll court relied on a Seventh
Circuit case holding that such costs were taxable under ' 1920(4). However, the Eleventh Circuit
has explicitly adopted a narrower interpretation than the Seventh Circuit of what constitutes an
Aexemplification.@ See Arcadian Fertilizer, 249 F.3d at 1297 (rejecting Athe broader and common
connotation that includes a showing or illustrating by example@) (internal quotations omitted).
Under the Seventh Circuit's broader reasoning, photographs and videography would be
exemplifications and taxable. However, the photographs are not exemplifications under the
Eleventh Circuit's narrower approach. Therefore, the court finds Carroll unpersuasive and
SUSTAINS the Plaintiff's objection.
D.

Freedom Court Reporting Site Inspection

The Defendants also seek reimbursement for a $535.00 cost for AFreedom Court Reporting,
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Inc. - Site Inspection.@ (Doc. 154-4 at 2). As best the court can tell, this cost is for videography
conducted at the site. (Doc. 154-5 at 8). This cost is not taxable for the same reason as the costs for
the aerial photography. The cost is for the creationBnot the copyingBof a material. Therefore, the
court SUSTAINS the Plaintiff's objection.
IV.

CONCLUSION
The court SUSTAINS the Plaintiff's objections to the Defendants’ Bill of Costs and

DIRECTS the Clerk to tax $14,075.56 in costs against the Plaintiff and for the Defendants.

DONE and ORDERED this 13th day of July, 2017.

___________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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