Jodie Riggs v. Transportation Insurance Company, Inc.

Filing 89

ORDER granting in part and denying in part 84 Renewed Motion for Award of Costs. Defendant is hereby awarded costs as against Plaintiff in the amount of $5,247.07. Signed by Honorable Jimm Larry Hendren on July 11, 2011. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
JODIE RIGGS d/b/a
THE SILVER SADDLE

PLAINTIFF

v.

Civil No. 08-03058

VALLEY FORGE INSURANCE
COMPANY, INC.

DEFENDANT
O R D E R

NOW on this 11th day of July, 2011, comes on for consideration
Defendant’s

Renewed

Motion

for

an

Award

of

Costs

(Doc.

84),

Plaintiff’s response thereto (Doc. 87) and Defendant’s reply (Doc.
88).

The Court, being well and sufficiently advised, finds and

orders as follows:
1.

On September 3, 3008, Plaintiff commenced this lawsuit in

the Circuit Court of Boone County, Arkansas, alleging that, under
an insurance policy issued by Defendant, she was entitled to
insurance coverage for a fire that destroyed her place of business.
Plaintiff asserted claims for breach of contract, common law bad
faith, and statutory bad faith. Plaintiff sought damages in excess
of $270,000 for her losses.
2.

On October 6, 2008, Defendant removed the case to this

Court based on 28 U.S.C. § 1332, diversity of citizenship.
3.

Defendant

filed

three

motions

for

summary

judgment

seeking dismissal of Plaintiff’s claims.
4.

On September 28, 2009, the Court entered an Order (Doc.

61) granting Defendant summary judgment and the Court entered a

Judgment (Doc. 62) dismissing Plaintiff’s Complaint with prejudice.
Specifically, the Court found that Plaintiff’s breach of contract
claims and statutory bad faith claims were barred by the statute of
limitations, and that Plaintiff failed to state a claim for common
law bad faith under Arkansas law.
5.

On October 13, 2009, Defendant filed a Motion for an

Award of Costs pursuant to Rule 54 of the Federal Rules of Civil
procedure and 28 U.S.C § 1920.
6.

On October 19, 2009, Plaintiff’s counsel filed a Motion

to Withdraw, citing communications by Plaintiff’s mother with the
attorneys for the Defendant.

On October 26, 2009, the Court

granted counsel’s motion to withdraw.

Plaintiff is now proceeding

pro se in this matter.
7.

On October 26, 2009, Plaintiff filed a Response to

Defendant’s Motion for an Award of Costs (Doc. 66) in which
Plaintiff agreed that Defendant was the prevailing party, but she
disagreed with the amount of costs that Defendant seeks.
8.

On October 27, 2009, Plaintiff filed a Notice of Appeal,

seeking review

of

the

Court’s

Order

and

Judgment

entered

on

September 28, 2009 (Docs. 61 and 62). Thereafter, the Court denied
Defendant’s motion for costs without prejudice pending the outcome
of the appeal.

(See Doc. 79).

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9.

On December 14, 2010, the Eighth Circuit issued its

appeal in this matter affirming this Court. The mandate was issued
on February 11, 2011.
10.

On February 18, 2011, Defendant filed its Renewed Motion

for an Award of Costs to which Plaintiff has filed her response.
The motion is ripe for the Court’s consideration.
11.

Taxation of costs is governed by F.R.C.P. 54(d), 28

U.S.C. § 1920 and case law.

“There is a presumption that the

prevailing party is entitled to costs,” however, the district court
enjoys substantial discretion in awarding costs. Bathke v. Casey’s
Gen. Stores, 64 F.3d 340, 347 (8th Cir. 1995); see also Marmo v.
Tyson Fresh Meats, Inc., 457 F.3d 748, 762 (8th Cir. 2006).
12.

Rule 54(d) does not give a court the discretion simply to

tax whatever costs it deems appropriate.

Recoverable costs are

defined and limited by the list set out in 28 U.S.C. § 1920, and
the Court is bound by that list.

Specifically, § 1920 authorizes

taxation of the following items of costs:
*

fees of the clerk and marshal;

*
fees for printed or electronically recorded transcripts
necessarily obtained for use in the case;
*

fees for printing and witnesses;

*
fees for exemplification and the costs of making copies
of material necessarily obtained in the case;
*

docket fees; and

*

compensation of court appointed experts and interpreters.

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Of these categories, Defendant seeks the following costs:
Fees of the Clerk:
$350.00
Fees for service of summons and subpoena:
400.00
Fees of the court reporter for all or part
of the transcript necessarily obtained
for use in the case:
15,883.49
Fees and disbursements for printing:
963.05
Fees for witnesses:
125.00
Fees for exemplifications and copies
of papers necessarily obtained for use in the case: 1,224.92
Docket Fees under 28 U.S.C. 1923:
-0Costs as shown on Mandate of Court of Appeals:
-0Compensation of court-appointed experts:
-0Compensation of interpreters and costs of
special interpretation services under 28 U.S.C 1828:
-0Other costs:
2,279.08
Total
13.

$21,225.54
In her response, Plaintiff objects to the motion on the

grounds that Defendant made “false statements” and “out and out
lies” to the Eighth Circuit that resulted in that court making an
“erroneous ruling” on her appeal.

Further, plaintiff argues that

the appellate court “did not make any ruling on any of the valid
issues in the Plaintiff’s Appeal.”
While

Plaintiff

may

disagree

(Doc. 87).
with

the

Eighth

Circuit’s

opinion, the Eighth Circuit rendered a valid ruling in this case
and Defendant is the prevailing party.
Plaintiff also objects that Defendant seeks costs that are
“excessive, unrelated, unnecessary, nonallowed and unacceptable.”
These are pertinent objections and the Court will now turn to the
specific costs that Defendant seeks -- although not in the order
presented in the Bill of Costs.
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Fees of the Clerk

*

Defendant seeks the recovery of the $350 filing fee paid to
the Clerk with its Notice of Removal.

Courts have held that the

removal fee is a taxable “fee of the clerk” under 28 U.S.C. §
1920(1) and is recoverable. See, e.g., Lucien v. DeTella, 141 F.3d
773, 775 (7th Cir. 1998); Chism v. New Holland N. Am., Inc., 2010
U.S. Dist. LEXIS 57642 at *7 (E.D. Ark. May 13, 2010) (collecting
cases).
*

Accordingly, recovery of this fee will be allowed.
Fees of the court reporter for all or any part of the

transcript necessarily obtained for use in the case
Defendant seeks to recover $15,883.49 for the transcript fees
from seventeen depositions as well as the travel expenses its
attorneys incurred (airfare, lodging, meals, etc.) in taking these
depositions.

Specifically, Defendant seeks to recover $6,374.85

for transcript fees and $9,508.64 for travel expenses.
Transcript fees from depositions can be taxed provided the
depositions “were reasonably necessary to the case and were not
purely investigative in nature.”

Koppinger v. Cullen-Schiltz &

Assocs., 513 F.2d 901, 911 (8th Cir. 1975).

For example, the

Eighth Circuit has affirmed the award of transcript fees when the
deposition
judgment.

was

employed

on

a

successful

motion

for

summary

See Bathke, 64 F.3d at 347.

In its motion, Defendant asserts that it was necessary to take
the seventeen depositions because Plaintiff identified the persons
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deposed as persons who had knowledge about the claims in her case,
but she did not disclose what knowledge they had.
The Court has reviewed Plaintiff’s discovery responses but was
unable to find therein that Plaintiff identified all seventeen
people deposed as persons with knowledge in this case.

Even if,

nevertheless, plaintiff otherwise did so -- that, alone, would not
necessitate the taking of each person’s deposition as there are
other less expensive ways of discovering what a person may or may
not know about the facts of a case.
The only depositions on which Defendant relied in supporting
its summary judgment motions were those of the Plaintiff, Keith
Parker, Nancy Riggs and Mikel Carter.

Thus, the Court concludes

that the remaining depositions were not reasonably necessary to the
case,

but

were

essentially

investigative

in

nature.

This

conclusion is further supported by the fact that Plaintiff’s breach
of contract claims and statutory bad faith claims were dismissed as
being barred by statute of limitations -- the application of which
statute was established by Defendant through citations to the
insurance policy at issue and Arkansas case law.
possible

exception

of

Plaintiff’s

deposition,

Thus, with the
none

of

the

depositions were necessary to resolve that issue.
Therefore, the Court will allow the recovery of the transcript
fees for the depositions of Plaintiff, Nancy Riggs, Keith Parker
and Mikel Carter, as those depositions were employed by Defendant

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in

supporting

its

summary

judgment

motions.

The

remaining

transcript fees will not be allowed as those depositions were
investigative in nature.

The total amount allowed is $2,544.20.1

* Travel Expenses
Defendants

seek

reimbursement

for

their

associated with taking depositions in the case.

travel

expenses

The Court first

notes that most of the depositions were taken in Harrison, Arkansas
which is within the Western District of Arkansas.

The depositions

of Plaintiff and Nancy Riggs were taken in Marshall, Arkansas -which is also in the Western District of Arkansas.

Finally, the

deposition of Bill Inhofe was taken in Muskogee, Oklahoma -- which,
although not in the Western District of Arkansas, is only about 175
miles from Harrison.
“Barring exceptional circumstances, an attorney’s traveling
expenses in connection with the taking of depositions are not
taxable costs.”

Evans v. Fuller, 94 F.R.D. 311, 314 (W.D. Ark.

1982)(J. Waters).
There is no showing of what would appear to be exceptional
circumstances in this case.

It was Defendant's choice to hire

attorneys from Chicago, Illinois, to defend it in this matter thus
1

The Court arrives at this amount as follows:

$1,475.40 - for the deposition of Plaintiff
$ 538.80 - for the depositions of Nancy Riggs at Mikel
Carter (148 pages at $3.10 per page plus $80 appearance fee)
$530.00 - for the deposition of Keith Parker (96 pages
at $5.00 per page plus a $50 appearance fee)
-7-

creating the need for it to incur the cost for their having to
travel to the Western District of Arkansas to take the depositions
of witnesses located in this District or very nearby.

While the

Defendant, of course, had the right to employ out of state counsel
for its representation in this case, the exercise of that right
cannot be permitted to create an "exceptional circumstance" which
would create a taxable cost to be paid by its opponent.

The Court

is not willing to shift those costs to the Plaintiff.
*

Fees for witnesses

Defendant seeks to recover $400 for costs allegedly associated
with serving deposition subpoenas.
However, based upon its review of the supporting documentation
supplied, the Court believes that Defendant is actually seeking
reimbursement for the $40 witness fee it paid to ten witnesses and
the $125 witness fee it paid to an eleventh witness.

The ten

witnesses are:
Orville D. McGarrah
Hannah Hearn
Frank Villines
Jeff Hearn
Shane Bridges
Bill Inhofe
Pat Pike
Ron Ash
Burt Daniels
Mikel Carter
The eleventh witness is one Keith Parker to whom Defendant
paid a witness fee of $125.

From the records submitted to the

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Court, it

appears

that

Mr.

Parker’s

deposition

was

taken in

Harrison, Arkansas.
Under 28 U.S.C. § 1821, a witness shall be paid a $40
attendance fee as well as mileage for traveling to and from the
deposition. The Court presumes that Mr. Parker’s $125 fee includes
travel expenses for attending the deposition.
In determining whether to award witness fees as taxable costs,
“[a] major factor that the judge must weigh is . . .whether the
testimony of the witness was relevant and material to an issue in
the case and reasonably necessary to its disposition.”

Wright,

Miller & Kane Federal Practice and Procedure: Civil 3d § 2678.
As set forth above, of the people paid a witness fee for
attending a deposition, only Mikel Carter’s and Keith Parker’s
depositions were actually used in supporting the summary judgment
motions in this case. Accordingly, the Court finds that only those
witness fees are reasonably taxable as costs in this case.
Therefore, the Court will allow Defendant witness fees in the
amount of $165.00.
*

Fees

and

disbursements

for

printing

exemplification and copies of papers necessarily

and

Fees

for

obtained for use

in the case Defendant seeks to recover its photocopy costs paid to the
following vendors:
Patterson Law Firm (Plaintiff’s attorney)
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$314.10

Harrison Police Department

$11.75

Bank of the Ozarks

$100.00

Loop Legal

$537.20

In addition, Defendant seeks to recover for the in-house
copying expenses its attorneys charged (12,098 pages at $.10 per
page) and an additional $15.12 for outside copying expenses.
total amount Defendant seeks is $2,187.87.

The

Defendant asserts that

it “necessarily incurred these claimed costs to research and review
Plaintiff’s evolving claims and documents” and specifically points
the Court to the fact that there were eight different written
discovery requests, responses and document productions exchanged by
the parties, as well as multiple discovery motions and three
summary judgment motions -– all of which necessitated the copying
charges.
“Copy and exemplification fees may be awarded if the fees were
incurred for items ‘necessarily obtained’ for use in the case.”
Marmo, 457 F.3d at 763. In determining whether a photocopy expense
is necessary, this Court “enjoys discretion,” but “[w]hen an
expense is a taxable cost, however, there is a strong presumption
that a prevailing party shall recover it in full measure.” Concord
Boat Corp. v. Brunswick Corp., 309 F.3d 494, 498 (8th Cir. 2002)
(internal quotation marks and citations omitted).
Plaintiff objects to the amount of copying charges as “a bad
joke,” but she does not put forward any specific reason why the

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copying costs sought by Defendant are unreasonable.

As the losing

party, Plaintiff “bears the burden of making the showing that an
award is inequitable under circumstances.”
at 498.

Concord Boat, 309 F.3d

Plaintiff has not met her burden, and the Court finds that

Defendant’s copying costs are recoverable.
*

Other costs

Defendant

seeks

$2,279.08

in

expenses

incurred

by

its

attorneys in traveling to meet with a witness, Cindy Dowies, as
well as for travel to Fayetteville, Arkansas, for a settlement
conference

with

the

Magistrate

Judge.

These

costs

are

not

specified by § 1920 as recoverable costs and they will not be
allowed.
IT IS THEREFORE ORDERED that Defendant’s Renewed Motion for an
Award of Costs (Doc. 84) is hereby GRANTED IN PART, and DENIED IN
PART.

Defendant is hereby awarded costs as against Plaintiff in

the amount of $5,247.07.
IT IS SO ORDERED.

/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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