Marable v. Marion Military Institute, et al
ORDER granting 119 Motion to Retax Costs. The court will re-tax as costs the requested court deposition costs ($3,144.10) which were disallowed by the clerk. Signed by Judge Callie V. S. Granade on 1/11/2013. (sdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
REGINALD D. MARABLE, SR.,
MARION MILITARY INSTITUTE
and COL. THOMAS L. TATE, in
his individual and official
Civil Action No. 11-0563-CG-B
This matter is before the court on the defendants’ motion to re-tax
costs (Doc. 119). For the reasons stated below, the motion is GRANTED.
On November 5, 2012, the court granted summary judgment in favor of
the defendants, Marion Military Institute and Col. Thomas L. Tate
(collectively, the “Defendants”) and taxed costs to the plaintiff, Reginald D.
Marable, Sr. (“Marable”). (Doc. 112). Subsequently, the Defendants filed a
bill of costs with the clerk of the court, requesting $3,494.03. The notation in
the clerk's order taxing costs indicates that transcription expenses were
disallowed pursuant to Standing Order 13. The defendants then duly filed
their motion to re-tax the costs pursuant to Fed.R.Civ.P. 54(d)(1). (Doc. 119).
The Defendants seek costs for deposing Marable and five other witnesses:
David Mollohan, Doris Colburn, Janice McGee, Dennis Hastings, and Susan
Stevenson. Id. Marable filed an objection to the motion (Doc. 121) and the
Defendants filed a reply (Doc. 122).
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
attorneys fees – should be allowed a prevailing
Fed.R.Civ.P. 54(d)(1). Additionally, 28 U.S.C. § 1920 states in part:
A judge or clerk of any court of the United States
may tax as costs the following:
Fees of the clerk and marshal;
Fees of the court reporter for all or any part
of the stenographic transcript necessarily
obtained for use in the case;
Fees and disbursements for printing and
Fees for exemplification and copies of papers
necessarily obtained for use in the case;
Docket fees under section 1923 of this title;
Compensation of court appointed experts,
compensation of interpreters, and salaries,
fees, expenses, and costs of special
interpretation services under section 1828 of
28 U.S.C. § 1920. The court is also guided by this court's Standing Order 13
which provides that costs shall be taxed consistent with the following
1. Deposition Costs:
(a) The Clerk may tax the cost of an original
deposition upon the written representation of
counsel for a party claiming the cost that a
substantial portion of the deposition was admitted
in evidence on the trial of the case.
(b) The Clerk shall not otherwise tax the costs of
either the original or a copy of the deposition
(unless otherwise ordered by the court) and any
party desiring to tax the cost of depositions other
than those described in subparagraph (a) shall file
in writing a motion to re-tax the costs pursuant to
Fed.R.Civ.P. 54(d) [sic] and Local Rule 54.1 and
present the matter to the court.
(S.D. Ala. Standing Order 13 (June 1997) (footnotes omitted)).
The Supreme Court has interpreted Rule 54(d) to grant federal courts
discretion to refuse to tax costs in favor of the prevailing party. See Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987); see also Allstate
Ins. Co., Inc. v. Jones, 763 F.Supp 1101, 1102 (M.D.Ala.1991) (The language
of Rule 54(d) “is generally considered to state an equitable principle ...
[which] vests in the district court a sound discretion over the allowance,
disallowance, or apportionment of costs in all civil actions.” (citations and
internal quotations omitted)). Moreover, “[i]n 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, federal courts are limited to those costs specifically
enumerated in 28 U.S.C. § 1920. Crawford Fitting Co, 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). “[T]he 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. (citations
omitted). Thus, the costs will almost always be less than the total expenses
associated with the litigation. Id. (citations omitted).
Taxation of deposition expenses is authorized by 28 U.S.C. § 1920(2).
See U.S. E.E.O.C. v. W & O, Inc., 213 F.3d 600, 620 (11th Cir.2000).
However, “[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.” Id. (quoting 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)).
Whether the costs for a deposition are taxable depends on “whether the
deposition was wholly or partially ‘necessarily obtained for use in the case.’ ”
Id. at 621 (quoting Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 337 (5th
Cir. Unit B 1981)). In this district, Standing Order 13 clarifies the issue by
requiring the prevailing party to submit a “written representation ... that a
substantial portion of the deposition was admitted in evidence on the trial of
the case.” (S.D. Ala. Standing Order 13 (June 1997)). Otherwise the clerk
may not tax the costs of either the original or a copy of a deposition unless
otherwise ordered by the court. Id.
The defendants represent that the depositions for which they seek to
re-tax costs were necessarily obtained for use in the case, pointing to the fact
that they used excerpts of each deposition in their summary judgment brief.
See Docs. 71 and 73. Marable, however, argues that the requested costs are
unclear and inadequately documented because the Defendants did not
itemize them in the motion to re-tax and therefore, there is no way of
knowing whether “excessive copies” are included in the requested amount.
(Doc. 121 at 2). Marable also argues that “the Defendants acted with unclean
hands toward [Marable] and this, too, should be considered in a
determination of costs.” Id. Finally, Marable asserts that he is experiencing
financial hardship as evidenced by his ongoing bankruptcy in the Northern
District of Alabama, and taxing costs to him would increase his debt and
exacerbate his already difficult financial situation. Id.
With regard to Marable’s first objection, the court notes that the
Defendants previously filed a verified bill of costs under penalty of perjury
(Doc. 114) in which defense counsel distinguished between fees for
transcripts “necessarily obtained for use in the case” versus fees for
“exemplification and the costs of making copies.” Id. The court is therefore
satisfied that the amount the Defendants seek to re-tax is appropriate under
§ 1920(2) and Rule 54(d)(1).
With regard to Marable’s second objection, he offers no explanation or
example of what the Defendant did that would constitute acting with unclean
hands. Assuming that Marable is referring to the allegations in his
complaint and opposition to summary judgment, then the court has already
exhaustively addressed them and found them wanting. If Marable had some
other allegation in mind, the court cannot divine it from his objection to the
motion to re-tax costs. Marable’s citation of Baumann v. Savers Federal Sav.
& Loan Ass’n., 934 F.2d 1506 (11th Cir. 1991) does not clarify matters, either,
because that is a case dealing with the breach of certain loan agreements by a
savings and loan institution in the 1980s, in which the Eleventh Circuit
merely mentioned in passing the district court’s denial of costs and fees
because the prevailing party had unclean hands. Id. at 1509. Marable
makes no effort to explain how the facts of Baumann or the behavior of the
prevailing party are similar to the instant case.
Finally, with regard to Marable’s third objection, the court notes that
he has not cited any authority to support his argument that a party’s
financial difficulties are grounds for striking a prevailing party’s motion to retax costs. See Doc. 121 at 2. The Eleventh Circuit has held that “a nonprevailing party’s financial status is a factor that a district court may, but
need not, consider in its award of costs pursuant to Rule 54(d).” Chapman v.
AI Transport, 229 F.3d 1012, 1038-39 (11th Cir. 2000). But consideration of
this factor is a “rare” circumstance, requiring “clear proof of the non-
prevailing party’s dire financial circumstances.” Id. at 1039. Furthermore,
the Chapman court also stressed that “a court may not decline to award any
costs at all.” Id. Although the record before the court contains extensive
records from the proceedings of Marable’s bankruptcy case, see Doc. 70-13,
the information contained in those records dates to April 2011. Id. Marable
made no effort to identify his current monthly income and expenses in his
objection to the motion to re-tax costs, nor did he provide any detail regarding
his alleged financial hardship beyond simply referring to the bankruptcy
case. See Doc. 121 at 2. The bankruptcy documents on the record indicate
that Marable makes a monthly payment of $1,000 to the bankruptcy trustee
in accordance with a 60-month plan. (Doc. 70-13 at 11). Having made no
showing of his current income or inability to pay, and with only stale
information from the bankruptcy court to rely upon, the court finds that
Marable has not satisfied his burden of proving “dire” financial
Accordingly, the court will re-tax as costs the requested court
deposition costs ($3,144.10) which were disallowed by the clerk.
DONE and ORDERED this 11th day of January 2013.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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