Pelka v. Ware County, Georgia et al

Filing 142

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
WAYCROSS DIVISION

SUSI EMERITA PELKA, as the

*

Surviving Spouse and Personal
*
Representative of the Estate of *
JEFFERY DAVID PELKA, Deceased,
*
Plaintiff,
*

V.

*

CV 516-108

5
*

CITY OF WAYCROSS, GEORGIA,

*

et al.,

*

Defendants.

*

ORDER

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
Procedure 54(d).

(Doc. 136.)

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
Defendant.

(Doc. 134.)

Because of the pending appeal. Plaintiff

moves to continue the taxing of costs until after the Eleventh
Circuit rules.

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
costs

avoids

economy.

piecemeal

appeals

and

thereby

promotes

judicial

See In re Text Messaging Antitrust Litig., 2014

WL

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).

Finally, a

notice of appeal does not deprive the Court of jurisdiction to tax
costs.

See Rothenberg v. Sec. Mgmt. Co., 677 F.2d 64, 64 (11th

Cir. 1982).

The Court finds that delaying the taxing of costs until after
resolution
economy.
appeal

of

Plaintiff's

appeal

would

not

promote

judicial

Rather, it would open up the possibility of a piecemeal
and

further

prolong

this

litigation.

Accordingly,

Plaintiff's motion to continue taxing costs is denied.

B. Defendant's Bill of Costs

Federal Rule

of Civil Procedure

award costs to the prevailing party.

54(d)

allows the

Court to

The costs that may be taxed

against a non-prevailing party are defined in 28 U.S.C. § 1920 as
follows:

(1)

Fees of the clerk and marshal;

(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 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
(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.

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.

Id.

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
a

cost

is

not

taxable,

unless

the

information

regarding

the

proposed cost lies within the exclusive knowledge of the prevailing

party.

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
taxable.

were incurred and

whether they may be

Id.

Here, Defendant requests $5,164.71 in costs; $4,998.21 for
deposition

transcript

fees

charged

by

$166.50 for printing and copying fees.
Invoices,

Docs. 136-2, 137.)

the

court

reporter

and

(Bill of Costs, Doc. 136;

Plaintiff filed

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.

Defendant's

transcript

fees

are

comprised

of

the

court

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."

28

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.

The relevant

necessary at the time

Defendant

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
deposition

was

taken" (internal quotation

omitted)); see

also

Joseph, 950 F. Supp. 2d at 1258 ("A deposition taken within the

proper

bounds

of

discovery

will

normally

be

deemed

to

be

'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))).
At

the

time

Defendant

obtained

the

transcripts,

expecting to use them in a motion for summary judgment.

it

was

Such a

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.

130,

at

11.)

Further,

depositions of obscure

or

the

transcripts

were

largely irrelevant

not

the

witnesses; each

transcript was for a named Defendant in the case.
213 F.3d at 621.

from

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.

Defendant

seeks $36.50 for printing one copy of the pleadings in this case

and $130.20 for printing seven copies of Defendant's discovery
responses.

Seven copies of the discovery responses were necessary

to

each

ensure

counsel's

office

had

a

printed

copy.

Also,

Defendant used a reasonable rate of $0.15 per page.

Accordingly, the Court OVERRULES Plaintiff's Objection (Doc.
140) to

Defendant's

Bill of Costs

(Doc.

136).

The

Clerk is

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).