Barfield v. CSX Transportation, Inc.

Filing 150

ORDER granting in part and denying in part 139 CSX Transportation, Inc.'s motion for taxation of costs. The Court awards CSXT $7373.66 in costs against Steven Barfield and directs the Clerk of Court to enter judgment in favor of CSXT and against Barfield for $7373.66. Signed by Magistrate Judge Patricia D. Barksdale on 9/14/2017. (BGK)

United States District Court
Middle District of Florida
Jacksonville Division
STEVEN BARFIELD,
Plaintiff,
V.

NO. 3:14-CV-1031-J-PDB

CSX TRANSPORTATION, INC.,
Defendants.

Order Granting in Part Motion for Taxation of Costs
Following partial summary judgment, Doc. 61, and a jury verdict, Doc. 136, the
clerk entered final judgment in favor of CSX Transportation, Inc. (“CSXT”), and
against Steven Barfield, Doc. 138. Before the Court is CSXT’s motion under Federal
Rule of Civil Procedure 54(d)(1) to allow $8796.51 in costs against Barfield. Docs. 139,
139-1, 139-2. 1 After CSXT filed the motion, the Court allowed Barfield’s counsel to
withdraw and directed Barfield to file any response by May 12, 2017. See Docs. 148,
149. He did not file a response.
Federal Rule of Civil Procedure 54(d)(1) codifies the “venerable presumption
that prevailing parties are entitled to costs.” Marx v. Gen. Rev. Corp., 133 S. Ct. 1166,
1172 (2013). It provides costs “should be allowed to the prevailing party” unless
federal law or a court order provides otherwise. 2 Fed. R. Civ. P. 54(d)(1).

1For

any future filings, counsel is reminded Local Rule 3.01(a) requires a movant
to include the request for relief and legal memorandum “in a single document.”
2Before

2007, Rule 54(d)(1) provided “costs other than attorney’s fees shall be
allowed as of course to the prevailing party unless the court otherwise directs.” In 2007,
“shall” was replaced with “should.” The 2007 amendments were “intended to be stylistic
only.” Fed. R. Civ. P. 54, comment (2007 amend.).

“[W]hether to award costs ultimately lies within the sound discretion of the
district court.” Marx, 133 S. Ct. at 1172. But if a court exercises its discretion to deny
full costs, it “must have and state a sound basis.” Chapman v. AI Transp., 229 F.3d
1012, 1039 (11th Cir. 2000) (en banc).
28 U.S.C. § 1920 limits a district court’s discretion under Rule 54(d)(1) by
listing costs a court may allow. Maris Distr. Co. v. Anheuser-Busch, Inc., 302 F.3d
1207, 1225 (11th Cir. 2002). They are:
(1)

Fees of the clerk and marshal;[ 3]

(2)

Fees for printed or electronically recorded transcripts necessarily
obtained for use in the case;[ 4]

3For

“[f]ees of the … marshal,” allowed costs include costs for private service of
process in an amount that does not exceed what the United States Marshals Service
charges. EEOC v. W&O, Inc., 213 F.3d 600, 624 (11th Cir. 2000). For in-person service,
the Marshals Service charges $65 an hour “plus travel costs and any other out-of-pocket
expenses.” 28 C.F.R. § 0.114(a)(3). “If a party seeks to recover private service fees without
providing evidence of what hourly rate the private server charged, how much time he
spent trying to serve process, or other information needed to determine if his rate
exceeded that charged by the Marshal, then the appropriate practice is to award the
lesser of the amount that the party actually paid and the minimum charge of the U.S.
Marshals.” Oleksy v. Gen. Elec. Co., No. 06-cv-1245, 2016 WL 7217725, at *3 (N.D. Ill.
Dec. 12, 2016) (unpublished) (internal quotation marks omitted).
4For

a transcript or photocopy, whether the cost is allowed depends on whether it
was reasonably necessary for the movant to obtain the transcript or copy (allowed) or the
movant obtained the transcript or copy merely for convenience, to aid in thorough
preparation, or for investigative purposes (not allowed). W&O, 213 F.3d at 620, 623.
Costs for expedited transcripts are allowed if expediting them was necessary. Maris
Distr., 302 F.3d at 1225–26. Shipping costs for transcripts are not allowed. Watson v.
Lake Cty., 492 F. App’x 991, 997 (11th Cir. 2012). Courts differ on whether a court
reporter’s attendance fee is allowed. Compare, e.g., PCT Int’l Inc. v. Holland Elecs. LLC,
No. CV-12-01797-PHX-JAT, 2016 WL 1392075, at *3 (D. Ariz. Apr. 8, 2016) (unpublished)
(not allowed), with Procaps v. Patheon, Inc., No. 12-24356-CIV-GOODMAN, 2016 WL
411017, at *3 (S.D. Fla. Feb. 2, 2016) (unpublished) (allowed). Because § 1920 allows “fees
for printed or electronically recorded transcripts” but says nothing about a court
reporter’s fees to attend a deposition, because Congress sought to place rigid controls on
cost-shifting through § 1920, see Crawford, 482 U.S. at 444, because the Supreme Court
has interpreted § 1920 narrowly, see Taniguchi, 132 S. Ct. at 2002−05, and because the

2

(3)

Fees and disbursements for printing and witnesses;[ 5]

(4)

Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the
case;[ 6]

(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.
Section 1920 reflects congressional policy to place “rigid controls on costshifting in federal courts.” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,
444 (1987). “[A]s is evident from § 1920,” costs are “limited to relatively minor,
incidental expenses,” and “almost always amount to less than the successful litigant’s

Eleventh Circuit has held shipping costs for transcripts are not allowed even though
closely tied to the transcripts themselves, see Watson, 492 F. App’x at 997, the
undersigned falls in the not allowed camp.
5“[R]ecovery

of witness fees under § 1920 is strictly limited by § 1821, which
authorizes travel reimbursement and a $40 per diem.” Arlington Cent. Sch. Dist. Bd. of
Educ. v. Murphy, 548 U.S. 291, 298 (2006); see 28 U.S.C. § 1821(b), (c)(2). Travel
reimbursement is based on “the mileage allowance which the Administrator of General
Services has prescribed,” 28 U.S.C. § 1821(c)(2), which was $0.575 in 2015 and $0.54 in
2016, see U.S. Gen. Servs. Admin., POV [Privately Owned Vehicle] Mileage Rates
(Archived), available at https://www.gsa.gov/portal/content/103969 (last visited July
21, 2017).
6Costs

for production of oversize documents and photographs are taxable if
necessarily obtained for use in the case. Arcadian Fertilizer, L.P. v. MPW Indus. Servs.,
Inc., 249 F.3d 1293, 1296 (11th Cir. 2001). Whether a cost for photocopying is allowed
depends on “whether the prevailing party could have reasonably believed that it was
necessary to copy the papers at issue.” W&O, Inc., 213 F.3d at 623. “Use of information
contained in a file is not a prerequisite to finding that it was necessary to copy the file.”
Id. (internal quotation marks omitted). “Copies attributable to discovery are a category
of copies recoverable under § 1920(4).” Id. (internal quotation marks omitted).

3

total expenses in connection with a lawsuit.” Taniguchi v. Kan Pacific Saipan, Ltd.,
132 S. Ct. 1997, 2006 (2012) (internal quotation marks omitted).
“Items proposed by winning parties as costs should always be given careful
scrutiny.” Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235 (1964), disapproved of
on another ground by Crawford, 482 U.S. at 443. Once the prevailing party has shown
the requested costs are allowed under § 1920, the losing party must rebut the
presumption favoring their award. Manor Healthcare Corp. v. Lomelo, 929 F.2d 633,
639 (11th Cir. 1991). A court may decline to allow costs in § 1920 but may not allow
costs not in § 1920. Crawford, 483 U.S. at 442.
“[G]ood faith and limited financial resources are not enough to overcome the
strong presumption in favor of awarding costs to the prevailing party,” Pickett v. Iowa
Beef Processors, 149 F. App’x 831, 832 (11th Cir. 2005), and a court abuses its
discretion if it considers the relative wealth of the opposing parties, Chapman, 229
F.3d at 1039. A court may, but need not, consider a non-prevailing party’s finances.
Id. In the “rare circumstances” in which a court does, the court may not decline to tax
any costs at all. Id. If a court considers a non-prevailing party’s finances, it must
“require substantial documentation of a true inability to pay” (i.e., “clear proof of the
non-prevailing party’s dire financial circumstances”). Id.
CSXT provides an affidavit from counsel stating the costs “are correct and have
necessarily been incurred in this case”; invoices for the costs; and a completed “Bill of
Costs” form in which counsel verifies the statement, “I declare under penalty of
perjury that the foregoing costs are correct and were necessarily incurred in this
action and that the services for which fees have been charged were actually and
necessarily performed.” Doc. 139-2.
The following costs requested by CSXT are allowed, reduced, or not allowed.
Where allowed, the costs are allowed under § 1920, the costs are supported by invoices
and counsel’s unrebutted affidavit and declaration under penalty of perjury that
4

CSXT necessarily incurred them, and Barfield has not challenged them as
unreasonable. Where reduced or not allowed, insufficient details are provided to
determine if the costs are allowed under § 1920, or the costs are not allowed under
§ 1920.
Marshal Fees
Service of summons and subpoena on James Hunt
“Rush Fee”

$250

Witness fee

$89.75

“Charge for Check Draft”

$7.50

Reduced ($65); see 28 U.S.C.
§ 1920(1) and footnote 3
Allowed; see 28 U.S.C. § 1920(3) and
footnote 5
Not allowed; insufficient details
provided

Transcript Fees 7
Hearing on motion to dismiss
Expedited transcript

$349.20

7CSXT

Allowed; see 28 U.S.C. § 1920(2) and
footnote 4

used the transcripts of all depositions but Roger Doss’s to support its
summary-judgment motion. See Doc. 46 (summary-judgment motion), Doc. 46-2
(transcript of Steve Barfield’s deposition), Doc. 46-7 (transcript of Natasha Barfield’s
deposition), Doc. 46-8 (transcript of Lewis’s deposition), Doc. 46-9 (transcript of Hunt’s
deposition), Doc. 46-10 (transcript of Cox’s deposition), Doc. 46-11 (transcript of
Domiano’s deposition), Doc. 46-12 (transcript of Walley’s deposition), Doc. 46-13
(transcript of Rhodes’s deposition), Doc. 46-14 (transcript of Brigman’s deposition), Doc.
46-15 (transcript of Murray’s deposition), Doc. 46-16 (transcript of Charron’s deposition).
On the transcript of Doss’s deposition, because he was Barfield’s coworker and testified
favorably for Barfield, CSXT could have reasonably believed Barfield would rely on that
deposition in opposing summary judgment—which he ultimately did. See Doc. 50 at 3–5.
The transcript of the preliminary pretrial conference and hearing on CSXT’s motion to
dismiss was reasonably necessary for CSXT to have access to the Court’s reasoning in
ruling on the motion, which it explained on the record. See Docs. 21 (order on motion), 22
(minutes for hearing), 23 (transcript of hearing). The transcript of the final pretrial
conference was reasonably necessary for CSXT to adequately prepare for trial because
the Court discussed evidentiary issues, requirements of the parties, and other pretrial
matters. See Doc. 90 (minutes).

5

Deposition of Steve Barfield
Transcript ($4.48/pg.)

$1155.84

Allowed; see 28 U.S.C. § 1920(2) and
footnote 4

$39.60

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

$5.40

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

Exhibit copies (black & white)
($0.30/pg.)
Exhibit copies (color) ($0.90/pg.)
“Production and Code Compliance”
(combined with Natasha Barfield’s
deposition)

$45

“Word Index” (combined with
Natasha Barfield’s deposition)
($3.74/pg.)

$160.82

Not allowed; insufficient details
provided
Allowed; see 28 U.S.C. § 1920(2) and
footnote 4

Delivery (combined with Natasha
Barfield’s deposition)

$25 Not allowed; see footnote 4

Court reporter appearance fee
(combined with Natasha Barfield’s
deposition)

$135 Not allowed; see footnote 4

Deposition of Natasha Barfield
$197.12

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

$165.55

Allowed; see 28 U.S.C. § 1920(2) and
footnote 4

$575.10

Exhibit copies (black & white)
($0.30/pg.)

Allowed; see 28 U.S.C. § 1920(2) and
footnote 4

$2.70

Transcript ($4.48/pg.)

Allowed; see 28 U.S.C. § 1920(2) and
footnote 4

Deposition of William Murray
Copy of transcript (about $4.04/pg.)
Deposition of Matt Charron
Transcript (about $3.32/pg.)
Deposition of Charles Domiano
Court reporter appearance fee

$67.50 Not allowed; see footnote 4

6

Delivery

$25 Not allowed; see footnote 4

“Production and Code Compliance”

$45

Transcript ($3.74/pg.)

$407.66

“Video Streaming Attendance”

$99

Not allowed; insufficient details
provided
Allowed; see 28 U.S.C. § 1920(2) and
footnote 4
Not allowed; insufficient details
provided

Deposition of Dennis Rhodes
$154

Allowed; see 28 U.S.C. § 1920(2) and
footnote 4

$20.25

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

Transcript copy ($2/pg.)

$116

Allowed; see 28 U.S.C. § 1920(2) and
footnote 4

Exhibit copies ($0.25/pg.)

$4.75

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

Transcript copy ($2/pg.)
Exhibit copies ($0.25/pg.)
Deposition of John (Chris) Brigman

Deposition of James Hunt
Court reporter appearance fee

$132.35 Not allowed; see footnote 4

Delivery

$25 Not allowed; see footnote 4

“Production and Code Compliance”

$45

Transcript ($4.40/pg.)

$325.60

Not allowed; insufficient details
provided
Allowed; see 28 U.S.C. § 1920(2) and
footnote 4

Deposition of Dustin Walley
Court reporter appearance fee

$65 Not allowed; see footnote 4

Exhibit copies (black & white)
($0.30/pg.)

$0.30

Delivery

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

$25 Not allowed; see footnote 4

7

“Production and Code Compliance”

$45

Transcript ($3.10/pg.)

$303.80

Not allowed; insufficient details
provided
Allowed; see 28 U.S.C. § 1920(2) and
footnote 4

Deposition of Danny Cox
Court reporter appearance fee

$67.50 Not allowed; see footnote 4

Delivery

$25 Not allowed; see footnote 4

“Production and Code Compliance”

$45

Transcript ($3.74/pg.)

$209.44

Not allowed; insufficient details
provided
Allowed; see 28 U.S.C. § 1920(2) and
footnote 4

Deposition of Roger Doss
Court reporter appearance fee

$65 Not allowed; see footnote 4

Delivery

$25 Not allowed; see footnote 4

“Production and Code Compliance”

$10

Not allowed; insufficient details
provided

Transcript (minimum charge)

$200

Allowed; see 28 U.S.C. § 1920(2) and
footnote 4

Exhibit scanning ($0.15/pg.)

$0.15

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

Deposition of Dale Lewis
Court reporter appearance fee

$65 Not allowed; see footnote 4

“Video Streaming Attendance”

$99

Delivery

$25 Not allowed; see footnote 4

“Production and Code Compliance”

$25

Transcript ($3.75/pg.)

$240

8

Not allowed; insufficient details
provided

Not allowed; insufficient details
provided
Allowed; see 28 U.S.C. § 1920(2) and
footnote 4

Transcript of final pretrial conference
$455.90

Allowed; see 28 U.S.C. § 1920(2) and
footnote 4

$391.72

Allowed; see 20 U.S.C. § 1920(4) and
footnote 6

Danny Cox (21.3 miles, $0.54/mile)

$51.50

Allowed; see 28 U.S.C. § 1920(3) and
footnote 5

Charles Domiano (20 miles, $0.575/mile)

$51.50

Allowed; see 28 U.S.C. § 1920(3) and
footnote 5

Roger Doss (46.85 miles, $0.54/mile)

$65.30

Allowed; see 28 U.S.C. § 1920(3) and
footnote 5

$45

Allowed; see 28 U.S.C. § 1920(3) and
footnote 5

$85.31

Allowed; see 28 U.S.C. § 1920(3) and
footnote 5

Jury instruction notebooks (4 copies, 347
pages each, $0.10/pg.)

$138.80

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

Trial notebooks (4 copies, 297 pages
each, $0.10/pg.)

$118.80

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

Deposition designations (4 copies, 406
pages each, $0.10/pg.)

$162.40

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

Exhibit notebooks (4 copies, 450 pages
each, $0.10/pg.)

$180

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

Exhibits for submission during trial (7
copies, 450 pages each, $0.10/pg.)

$315

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

$98.10

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

Expedited transcript ($4.85/pg.)
Printing Fees
Demonstrative trial exhibits ($93 ea. +
tax)
Witness Fees

Dale Lewis (9.26 miles, $0.54/mile)
Dustin Walley (83.91 miles, $0.54/mile)
Copy Fees

Transcripts and discovery filings for use
in drafting motion for summary
judgment (981 pages, $0.10/pg.)

9

CSXT’s motion for summary judgment
and supporting materials (992 pages,
$0.10/pg.)

$99.20

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

CSXT’s motion for summary judgment
and supporting materials (997 pages,
$0.10/pg.)

$99.70

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

$122.70

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

Jones Day’s case file sent to
McGuireWoods trial counsel (432 pages,
$0.10/pg.)

$43.20

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

Cost of obtaining Department of Labor
file on Barfield’s FRSA complaint

$61.50

Allowed; see 28 U.S.C. § 1920(4) and
footnote 6

Summary judgment filings for use in
preparing for hearing on motion for
summary judgment (1227 pages,
$0.10/pg.)

TOTAL

$7373.66

Having failed to respond to CSXT’s motion to tax costs, Barfield has provided
no information about his finances sufficient to satisfy his burden of providing “clear
proof of … dire financial circumstances” justifying reducing costs against him. See
Chapman, 229 F.3d at 1039 (quoted).
The Court grants in part and denies in part CSXT’s motion, Doc. 139,
awards it $7373.66 in costs against Barfield, and directs the Clerk of Court to enter
judgment in favor of CSXT and against Barfield for $7373.66.
Entered in Jacksonville, Florida, on September 14, 2017.

10

c:

Counsel of record
Steven Barfield
4613 Mulberry Rock Rd.
Dallas, GA 30157

11