Alsip v. Wal-Mart Stores East, LP et al

Filing 131

ORDER GRANTING Dft's 122 Motion to Retax in the amount of $6,859.99 as set out & DENYING to the extent that Dft sought to recoup the costs of the exhibits from Emma Alsips deposition as set out. Signed by Senior Judge Callie V. S. Granade on 10/31/2016. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DUANE ALSIP as Administrator
and Personal Representative of
the Estate of Emma Alsip,
Plaintiff,
vs.
WAL-MART STORES EAST, LP
and SOVEREIGN COMMERCIAL
MAINTENANCE COMPANY, LLC
Defendants.

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) CIVIL ACTION NO. 14-476-CG-N
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ORDER
This matter is before the Court on a motion to re-tax costs by Defendant WalMart Stores East, L.P. (“Defendant”). (Doc. 122). The clerk taxed costs in the
amount of $1,114.43 for witness fees, copy costs, and travel costs related to the
deposition of Plaintiff’s expert. (Doc. 116). Defendant moves to re-tax costs to
include costs for depositions and copy costs in the amount of $5,776.32. (Doc. 122).
For the reasons set forth herein, the Court finds that Defendant can recover some,
but not all, costs associated with deposing the witnesses in this case and can recover
the copy costs incurred in this case. Accordingly, Defendant’s Motion to Re-Tax
Costs is due to be granted in part and denied in part.
“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 Ins. 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. (citation omitted).
“Whereas the costs that the district court may award under Rule 54(d)(1) are listed
in 28 U.S.C.A. § 1920, and a district court may not award other costs or exceed the
amounts provided in § 1920 without explicit authorization in another statutory
provision.” Id. (citation omitted). Thus, the costs will almost always be less than
the total expenses associated with the litigation. Id. (citation omitted).
The court's power to tax costs is grounded in part in Federal Rule of Civil
Procedure 54(d)(1), which states: “Unless a federal statute, these rules, or a court
order provides otherwise, costs - other than attorneys’ 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 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;

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(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 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).
Defendant requests certain deposition costs in the amount of $4,908.50 be
taxed against Plaintiff for eleven different depositions. (Doc. 122, pp. 1–2; Doc. 1151, pp. 1–4). Plaintiff filed no objection to these costs. Section 1920(2) authorizes the
award of costs for deposition transcripts. 28 U.S.C. § 1920 (2); see Kolesar, 313 F.2d
at 837–38 (“Though 1920(2) does not specifically mention a deposition, ...
depositions are included by implication in the phrase ‘stenographic transcript.’”).
Whether the costs for a deposition are taxable depends on “whether the deposition
was wholly or partially ‘necessarily obtained for use in the case.’” E.E.O.C. v. W &
O, Inc., 213 F.3d 600, 621 (11th Cir. 2000) (quoting Newman v. A. E. Staley Mfg.
Co., 648 F.2d 330, 337 (5th Cir. Unit B 1981)). “[D]eposition costs are taxable even
if a prevailing party's use of a deposition is minimal or not critical to that party's
ultimate success ….” Ferguson v. Bombardier Serv. Corp., 2007 WL 601921, *3

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(M.D. Fla. Feb. 21, 2007). Taxable deposition costs extend to per diem charges,
Procaps v. Patheon Inc., 2016 WL 411017, at *3 (S.D. Fla. Feb. 2, 2016), and exhibit
copies “produced for the purpose of supplementing the depositions on which the
court relied in granting summary judgment,” Kidd v. Mando Am. Corp., 870 F.
Supp. 2d 1297, 1299 (M.D. Ala. 2012).
But not all deposition costs are taxable. “Where the deposition costs were
merely incurred for convenience, to aid in thorough preparation, or for purposes of
investigation only, the costs are not recoverable.” E.E.O.C., 213 F.3d at 620
(citation omitted). This means that a prevailing party generally cannot recover
costs for both ordinary transcripts and condensed transcripts or other duplicate
forms of a transcript. Preis v. Lexington Ins. Co., 2007 WL 3120268, at *4 (S.D. Ala.
Oct. 22, 2007) (“such duplication is for the convenience of counsel and is not
taxable”). “Similarly, § 1920 does not authorize recovery of costs for shipment of
depositions or costs for binders, tabs, and technical labor.” Watson v. Lake City,
492 F. App’x 991, 997 (11th Cir. 2012). And the added expense of an expedited
transcript or a rough transcript is not taxable unless “the transcript is
indispensible.” Bumpers v. Austal U.S.A., L.L.C., 2015 WL 6870122, at *5 n.7 (S.D.
Ala. Nov. 6, 2015.
Each deposition for which the defendant requests costs be re-taxed was an
exhibit submitted to the Court with Defendant’s summary judgment motion, which
reasonably makes them necessary for use in this case. The depositions of Quinn
Schratz, Billy Wallace, and Russell Kendzior also had exhibits associated with

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them. Some of these exhibits were produced for the Court to decide Defendant’s
summary judgment motion, which reasonably makes the exhibits necessary for use
in this case.
Additionally, the deposition of Kendzior has the added cost for the transcript
being expedited. See (Doc. 122-1, p. 3). The cost of the expedited transcript was
$1,440.00. Id. This brought Kendzior’s total transcript copy cost to $3,060.00.
Defendant propounds that this added cost is necessary because Kendzior, Plaintiff’s
expert, was not deposed until nine days before Defendant was required to disclose
its rebuttal expert under Federal Rule of Civil Procedure Rule 26(a)(2)(D), although
Defendant offered dates much earlier. (Doc. 115-1, p. 3). The Court agrees that the
added cost was necessary. A copy of Kendzior’s transcript was indispensible to
Defendant in determining whether to retain or not retain a rebuttal expert before
the disclosure deadline. The fact that Defendant sought a seven-day extension to
the disclosure deadline days later does not change the necessity of this additional
cost. See Barrera v. Weiss & Woolrich Southern, 900 F. Supp. 2d 1328, 1335 (S.D.
Fla. 2012) (finding depositions taken within thirty days of a deadline justify
expedited transcript costs).
A review of the deposition invoices submitted show costs that cannot be
taxed, such as charges for transcript duplicates, travel versions, postage, exhibits
not used in the summary judgment motion, and other non-taxable costs. But for the
most part, Defendant already reduced the amount requested based on these nontaxable costs. Therefore, the cost of the depositions requested by Defendant is taxed

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against Plaintiff with the following exceptions:
(1)

Emma Alsip: $ 368.50, which is the cost of the transcript
plus 1/2 day per diem less $4.90 in exhibit charges for
unused exhibits; and

(2)

Billy Wallace: $381.95, which is the total amount of the
transcript and exhibits.1

The total amount of deposition costs to be re-taxed against Plaintiff is $4,906.60.
Photocopying costs are included in § 1920(4). In determining whether to
award copying costs, “the court should consider whether the prevailing party could
have reasonably believed that it was necessary to copy the papers at issue.” EEOC,
213 F.3d at 623. Costs associated with producing documents in discovery are
taxable. Id. Medical records subpoenaed duces tecum and courtesy copies supplied
to the court are also taxable. Crouch v. Teledyne Cont’l Motors, Inc., 2013 WL
203408, at *20, *30 (S.D. Ala. Jan. 17, 2013). Defendant’s counsel declares that the
copying costs and medical records subpoenaed were “necessarily incurred” for use in
this case for discovery or supplied to the Court as a courtesy copy under Local Rule
of Civil Procedure 7(g). (Doc. 115-1, pp. 5–6). Plaintiff filed no objection to these
costs. The Court finds that the copy and medical records costs totaling $867.82
were necessary and therefore are recoverable.2
Given this, Defendant’s Motion to Re-Tax (Doc. 122) is GRANTED in the
amount of $6,859.99 ($1,114.43 taxed by the clerk and $5,745.56 additional re-taxed

Defendant asks for a total of $378.50 for Billy Wallace deposition costs, which does
not equal the total of the transcript cost ($356.40) and exhibit cost ($25.55)
requested.
2 This amount includes the $28.86 already taxed by the clerk for copies.
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by the Court). The motion is DENIED to the extent that Defendant sought to
recoup the costs of the exhibits from Emma Alsip’s deposition.
DONE and ORDERED this 31st day of October, 2016.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

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