Pelka v. Ware County, Georgia et al
ORDER overruling 140 Objections; denying 141 Motion for Continuance of the Taxing of Costs. The Clerk is directed to tax costs in the amount of $5,164.71. Signed by Chief Judge J. Randal Hall on 05/06/2019. (thb)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
SUSI EMERITA PELKA, as the
Surviving Spouse and Personal
Representative of the Estate of *
JEFFERY DAVID PELKA, Deceased,
CITY OF WAYCROSS, GEORGIA,
Before the Court is Defendant City of Waycross, Georgia's
Bill of Costs (Doc. 136) and Plaintiff's Motion for Continuance of
Taxing of Costs (Doc. 140).
On March 21, 2019, Defendant filed a
Bill of Costs seeking $5,164.71, pursuant to Federal Rule of Civil
The day before, however. Plaintiff
filed a Notice of Appeal to the Eleventh Circuit seeking review of
this Court's September 29, 2018 Order dismissing her claims against
Because of the pending appeal. Plaintiff
moves to continue the taxing of costs until after the Eleventh
A. Plaintiff's Motion to Continue
The Court is vested with discretion to continue the taxing of
costs until a pending appeal is resolved.
See Estate of Pidcock
By and Through Pidcock v. Sunnyland Am., Inc., 726 F. Supp. 1322,
1341 (S.D. Ga. 1989) (granting a continuance while the case was on
appeal ''in the interests of judicial economy"); Terrell v. Paulding
Cty., 2012 WL 12898009, at *1 (N.D. Ga. Mar. 5, 2012) (denying a
continuance to avoid the "possibility of a piecemeal appeal").
Other courts have recognized that promptly ruling on a bill of
See In re Text Messaging Antitrust Litig., 2014
4343286, at *1 (N.D. 111. Sept. 2, 2014) (prompt action on a bill
of costs allows the issue to "be consolidated with the appeal on
the merits and heard at the same time"); Allen v. City of Chi.,
2016 WL 1070828, at *2 (N.D. 111. Mar. 16, 2016).
notice of appeal does not deprive the Court of jurisdiction to tax
See Rothenberg v. Sec. Mgmt. Co., 677 F.2d 64, 64 (11th
The Court finds that delaying the taxing of costs until after
Rather, it would open up the possibility of a piecemeal
Plaintiff's motion to continue taxing costs is denied.
B. Defendant's Bill of Costs
of Civil Procedure
award costs to the prevailing party.
The costs that may be taxed
against a non-prevailing party are defined in 28 U.S.C. § 1920 as
Fees of the clerk and marshal;
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; and
expenses, and costs of special interpretation services
under section 1828 of this title.
The power to tax costs pursuant to Rule 54(d) is not an
expansive one; rather, ''absent explicit statutory or contractual
authorization . . . federal courts are bound by the limitations
set out in . . . 28 U.S.C. § 1920."
Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437, 445 (1987).
Consequently, the Court
may not tax any cost unless it falls within one of the categories
enumerated by the statute.
While the Court retains discretion
to deny costs to a prevailing party, the presumption is in favor
of the award of costs.
Arcadian Fertilizer, L.P. v. MPW Indus.
Servs., Inc., 249 F.3d 1293, 1296 (11th Cir. 2001).
The non-prevailing party bears the burden to demonstrate that
proposed cost lies within the exclusive knowledge of the prevailing
Joseph v. Nichell^s Caribbean Cuisine, Inc.^ 950 F. Supp.
2d 1254, 1257-58 (S.D. Fla. 2013).
While the burden is on the
non-prevailing party to show a cost is not taxable, the prevailing
party must still submit a request for costs that enables the court
to determine what costs
were incurred and
whether they may be
Here, Defendant requests $5,164.71 in costs; $4,998.21 for
$166.50 for printing and copying fees.
Docs. 136-2, 137.)
(Bill of Costs, Doc. 136;
an Objection to
Defendant's Bill of Costs (Doc. 140), but her Objection does not
dispute the amount of costs sought or provide any reasons why
certain costs should not be awarded.
Instead, Plaintiff simply
asks the Court to delay ruling on the Bill of Costs until after
the Eleventh Circuit resolves her appeal.
reporter's charges for nineteen depositions, all of which were of
other Defendants in the case.^
While each of these depositions
were noticed by Plaintiff, that does not prevent Defendant from
1 Those Defendants are: Peter Wrobel, M.D.;
Simmons; Jeffery Nichols; Belenda McElroy;
Sheriff Randy Royal; Johnny Lee Jones, Jr.;
Streat; Sharon Ray; Dwayne Howell; James Lee;
and Michael Dean.
James Sowell; Hubert Ryals; Gary
Donny Spradley; Danny Christmas;
Susan Martin; Kristy White; Lynn
James Aldridge; Nathaniel Roberts;
recovering the costs of acquiring a copy of the transcript, so
long as it was ''necessarily obtained for use in the case."
U.S.C. § 1920(3); see also Daugherty v. Westminster Sch., Inc.,
174 F.R.D. 118, 124-25 (N.D. Ga. 1997).
The Court finds that each of these deposition transcripts
were necessarily obtained for use in the case, even though none of
the transcripts were used in a motion or at trial.
standard is whether they were
obtained the transcripts.
necessary at the time
U.S. E.E.O.C. v. W&O, Inc., 213 F.3d
600, 621 (11th Cir. 2000) (deposition costs are recoverable if
"related to an issue which was present in the case at the time the
taken" (internal quotation
Joseph, 950 F. Supp. 2d at 1258 ("A deposition taken within the
'necessarily obtained for use in the case' and its costs will be
taxed unless the opposing party interposes a specific objection
that the deposition was improperly taken or unduly prolonged."
(quoting George R. Hall, Inc. v. Superior Trucking Co., 532 F.
Supp. 985, 994 (N.D. Ga. 1982))).
expecting to use them in a motion for summary judgment.
motion only became unnecessary months after Defendant obtained the
transcripts because the Court reversed its prior decision to deny
Defendant's motion to dismiss.
(See Order of Sept. 11, 2018, Doc.
depositions of obscure
transcript was for a named Defendant in the case.
213 F.3d at 621.
See W&O, Inc.,
For these reasons. Defendant is entitled to
$4,998.21 in deposition transcript fees.2
The Court also finds that the $166.50 in printing and copying
costs were related to materials necessary for the case.
seeks $36.50 for printing one copy of the pleadings in this case
and $130.20 for printing seven copies of Defendant's discovery
Seven copies of the discovery responses were necessary
Defendant used a reasonable rate of $0.15 per page.
Accordingly, the Court OVERRULES Plaintiff's Objection (Doc.
Bill of Costs
DIRECTED to tax costs in the amount of $5,164.71 against Plaintiff.
Finally, Plaintiff s Motion for Continuance of the Taxing of Costs
(Doc. 141) is DENIED.
ORDER ENTERED at Augusta, Georgia, this 6th day of May, 2019.
. RANDAL HALL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
2 The court reporter's fees for shipping and for deposition exhibits are also
recoverable. See Denton v. DaimlerChryler Corp., 645 F. Supp. 2d 1215, 1227
(N.D. Ga. 2009).
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