Strawser v. State of Alabama

Filing 194

ORDER GRANTING in part & DENYING in part Plfs' 191 Motion to Re-tax Costs. Plfs are awarded costs in the amount of $943.00 as set out. The motion is DENIED to the extent they sought to recover the costs of postage. Signed by Senior Judge Callie V. S. Granade on 8/23/2016. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES N. STRAWSER, et al.,
Plaintiffs,
vs.
LUTHER STRANGE, in his official
capacity as Attorney General for
the State of Alabama, et al.,
Defendants

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CIVIL ACTION NO. 14-0424-CG-C

ORDER
This matter is before the court on Plaintiffs’ motion to review costs (Doc. 191).
Plaintiffs previously filed their Bill of Costs requesting a total of $1,459.22 to be
awarded in costs. (Doc. 182). Attorney General Luther Strange opposed the award
of costs for pro hac vice fees and the costs for service, copying, and mailing notices
upon Class Defendants. (Doc. 185). Defendants Judge Don Davis and Judge Tim
Russell, in their official capacities and as Class Representatives, also objected to the
award of admission fees of counsel as costs. (Doc. 187). The Clerk taxed $126.60 in
costs, but rejected the request for fees of the Clerk in the amount of $592.00, fees for
copies of Docs. 122 and 123 in the amount of $224.40 and postage for mailing
notices as required by the Court in the amount of $516.22. (Doc 190).
Plaintiffs seek review of the Clerks disallowance of costs. The Court notes
that the Clerk was only authorized to tax costs that are specifically listed in this
Court’s Standing Order 13, which states that any party desiring to tax other fees or
expenses shall file a motion to re-tax the costs pursuant to FED. R. CIV. P. 54(d) and

Civil Local Rule 54.
“In the exercise of sound discretion, trial courts are accorded great latitude in
ascertaining taxable costs.” Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519,
1526 (11th Cir. 1985) (citing United States v. Kolesar, 313 F.2d 835 (5th Cir. 1963)).
However, in exercising its discretion to tax costs, absent explicit statutory
authorization, federal courts are limited to those costs specifically enumerated in 28
U.S.C. § 1920. Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445 (1987).
The word “costs” is not synonymous with “expense.” Eagle Insurance Co. v.
Johnson, 982 F.Supp. 1456, 1458 (M.D. Ala. 1997). “[E]xpense includes all the
expenditures actually made by a litigant in connection with the lawsuit.” Id.
(citations omitted). “Whereas the costs that the district court may award under
Rule 54(d)(1) are listed in 28 U.S.C.A. § 1920, a district court may not award other
costs or exceed the amounts provided in § 1920 without explicit authorization in
another statutory provision.” Id. (citations omitted). Thus, the costs will almost
always be less than the total expenses associated with the litigation. Id. (citations
omitted).
The Court's power to tax costs is grounded in part in Rule 54(d)(1) of the
Federal Rules of Civil Procedure, which states: “Unless a federal statute, these
rules, or a court order provides otherwise, costs - other than attorney’s fees - should
be allowed to the prevailing party.” FED. R. CIV. P. 54(d)(1). Rule 54(d) gives rise to
a presumption that costs will be awarded, and the party opposing the award must
overcome this presumption. Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639
(11th Cir. 1991); see also Caribbean I Owners' Ass'n, Inc. v. Great Am. Ins. Co. of
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New York, 2009 WL 2150903, at *3 (S.D. Ala. July 13, 2009) (“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.”) (citations omitted); Monelus
v. Tocodrian, Inc., 609 F.Supp.2d 1328, 1333 (S.D. Fla. 2009) (“When challenging
whether costs are taxable, the losing party bears the burden of demonstrating that
a cost is not taxable[.]”).
Section 1920 of Title 28 authorizes a judge or clerk of court to tax six items as
costs:
(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. A court may not award costs that exceed those permitted by §
1920. See Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1575 (11th Cir. 1988).
Plaintiffs first seek to recover as costs the fees incurred for original district
court attorney admission and for original Eleventh Circuit attorney admission. The
fees for original admission are recoverable under subsection one of § 1920. Crooked
Creek Properties, Inc., v. Hutchinson, 2013 WL 1857625 at *2 (M.D. Ala. May 2,
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2013) (citation omitted). Courts are split on whether a court may appropriately tax
pro hac vice fees, but that is not an issue here, because Plaintiffs only requested to
recover fees for original admission. See Smith v. Joy Techs., Inc., 2015 WL 428115,
at *5 (E.D. Ky. Feb. 2, 2015) (citing Kalitta AirCourt L.L.C. v. Central Texas
Airborne Sys., Inc., 741 F.3d 955, 958 (9th Cir. 2013) (finding pro hac vice fees are
not recoverable but original admission fees are) and Craftsmen Limousine, Inc. v.
Ford Motor Co., 579 F.3d 894, 896 (8th Cir. 2009) (taxing pro hac vice fees)); see also
Thompson v. Equifax Credit Info. Servs., Inc., 2003 WL 1579270, at *1 (M.D. Ala.
Mar. 3, 2003) (holding that pro hac vice fees are not taxable as costs); Eagle Ins. Co.
v. Johnson, 982 F.Supp. 1456, 1459–1460 (M.D. Ala. 1997) (same). Accordingly, the
Court finds that the original attorney admission fees sought by Plaintiffs are
recoverable as costs.
Plaintiffs next seek to recover the cost of copying Documents 122 and 123
because the Court ordered Plaintiffs to provide notice of those Orders “to each
member of the Defendant Class by mailing copies of both orders by certified mail to
each class member…” (Doc. 123). Such costs are recoverable under subsection four
of § 1920 since they constitute copying costs that were necessarily obtained for use
in this case. The Attorney General opposed the recovery of these copying costs on
the basis that the notices were sent to members of the Defendant Class and he is
not a member of the Defendant Class. However, the Attorney General has offered
no authority for disallowing costs that are associated with claims that are not
asserted against all defendants. The Attorney General’s participation in this
lawsuit was necessary for the Plaintiffs to ensure complete recovery if they were
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successful. The Court also notes that the Attorney General opposed Plaintiffs’
motions to amend the complaint, to certify classes and for a preliminary injunction
against the Defendant Class. (Docs. 78, 99). Under the circumstances, the Court
finds it appropriate to tax the costs against all of the Defendants, including the
Attorney General.
Lastly, Plaintiffs seek to recover the postage costs associated with mailing
copies of Documents 122 and 123 as ordered by the Court. The Eleventh Circuit has
held that postage is not a taxable cost. Gary Brown & Assoc v. Ashdon, Inc., 268 F.
App' x 837, 846 (11th Cir. 2008). Plaintiffs point out that, “[w]ith the exception of
routine office overhead normally absorbed by the practicing attorney, all reasonable
expenses incurred in case preparation, during the course of litigation, or as an
aspect of settlement of the case may be taxed as costs under § 1988.” ACLU of Ga. v.
Barnes, 168 F.3d 423, 438 (11th Cir. 1999) (quoting Dowdell v. City of Apopka, 698
F.2d 1181, 1192 (11th Cir.1983)). Section 1988 gives the Court discretion to award
a reasonable attorney’s fee to the prevailing parties as part of the cost in actions
brought for the vindication of civil rights. 42 U.S.C.A. § 1988. Plaintiffs have not
yet moved for recovery of fees and expenses under § 1988 because the finality of the
judgment in this case was suspended while Plaintiffs’ motion to alter or amend the
judgment was pending. The motion to alter or amend judgment has now been
granted and Plaintiffs are free to move for relief under § 1988. The Court finds that
the postage expense is not recoverable under FED. R. CIV. P. 54 and that Plaintiffs
may include a request for recovery of that expense if they choose to file a motion for
recovery of fees and expenses under § 1988.
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CONCLUSION
For the reasons stated above, the Court finds that Plaintiffs’ motion to re-tax
(Doc. 191), should be GRANTED in part to the extent that Plaintiffs are awarded
costs in the amount of $943.00 (representing: $592.00 for fees of Clerk, $105.00 for
service of summons and subpoena, $21.60 for transcripts, and $224.40 for copies).
Plaintiffs’ motion to re-tax is DENIED to the extent they sought to recover the
costs of postage.
DONE and ORDERED this 23rd day of August, 2016.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

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