Stalvey et al v. United States Of America

Filing 87

ORDER granting 83 Bill of Costs and Plaintiff is TAXED $3,635.02 for the following necessary and statutorily permissible cost: 1. Clerk Fees $400.00; 2. Service of Process Fees $60.00; 3. Deposition Costs $2,946.00; 4. Witness Fees $80.00; 5. Medical Record Production Costs $148.52. Signed by Judge Lisa G. Wood on 7/22/2020. (ca) Modified on 7/22/2020 (ca).

Case 5:18-cv-00019-LGW-BWC Document 87 Filed 07/22/20 Page 1 of 13

In the United States District Court
for the Southern District of Georgia
Waycross Division

FILED
John E. Triplett, Acting Clerk
United States District Court

By CAsbell at 12:35 pm, Jul 22, 2020

DONALD IVEY STALVEY, JR.
Plaintiff,
v.

No. 5:18-cv-00019

UNITED STATES OF AMERICA,
Defendant.

ORDER
This matter is before the Court on Plaintiff’s Bill of Costs.
Dkt. No. 83. It has been fully briefed by the parties and is ripe
for review. Dkt. Nos. 84, 86. For the reasons below, Plaintiff’s
request for costs is GRANTED.
BACKGROUND
Plaintiff seeks to tax Defendant for $3,635.02 in costs, as
follows:
1.
2.
3.

Fees of the Clerk 1
$400.00
$60.00
Fees for service of summons and subpoena 2
Fees for deposition transcripts
$2,946.00
3
• Robinson Court Reporting Services
$786.15

1

See Exhibit B, dkt. no. 83-1, a $60.00 invoice for process service from Crisp
& Associates and a copy of a corresponding check from Plaintiff’s counsel to
Crisp & Associates for $60.00.
2 See Exhibit A, dkt. no. 83-2, a copy of this cases’ docket report reflecting
Plaintiff paid the $400.00 filing fee on March 3, 2018.
3 See Exhibit C, dkt. no. 83-3, an invoice for depositions taken on August 8,
2018, including the depositions (original plus one copy) of D’Arcy Jackson and
Antony Hall, the depositions (one copy) of Donald Stalvey, Candace Stalvey, and
Aniston Stalvey from Robinson Court Reporting Services and a copy of a

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Case 5:18-cv-00019-LGW-BWC Document 87 Filed 07/22/20 Page 2 of 13

4.

5.

• Cofey & Arwood, LLC 4
$152.00
$684.95
• Coastal Court Reporting 5
• Joyce Waters Reporting, Inc. 6
$798.50
• Hunter Video Productions 7
$380.00
8
$144.90
• Debra Gilbert
Fees for witnesses
$80.00
9
• Dr. Sofiamos
$40.00
• Dr. Helman 10
$40.00
11
Fees for exemplification and copy costs
$148.52
• HIM Quality Solutions
$87.94
• Rehab Services of Coffee
$25.00
• Tift Regional Hospital
$35.58

Dkt. No. 83.

corresponding check from Plaintiff’s counsel to Julie Robinson Lawrence for
$786.15. Exhibit 2 to Plaintiff’s Reply Brief, dkt. no. 86-2, itemizes these
costs, detailing what Plaintiff paid for each original deposition and/or copy
thereof, along with the court reporter’s appearance fees, mileage fees, and the
fee for the witnesses to read and sign their respective deposition transcripts.
4 See Exhibit D, dkt. no. 83-4, the cover page of Dr. Hellman’s original
deposition, taken November 28, 2018, and copy of a corresponding check from
Plaintiff’s counsel to Coffey & Arwood, LLC for $152.00.
5 See Exhibit E, dkt. no. 83-5, an invoice for the transcript and one copy of
the deposition of Dmitri A. Sofianos, MD on October 3, 2018 for $684.95, and a
copy of a corresponding check from Plaintiff’s counsel to Coast Court Reporting
for $684.95.
6 See Exhibit G, dkt. no. 83-7, the cover page of Dr. Hellman’s videotaped trial
deposition, taken August 26, 2019, and a copy of a corresponding check from
Plaintiff’s counsel to Joyce Waters Reporting, Inc. for $798.50.
7 See Exhibit I, dkt. no. 83-9, a copy of a check from Plaintiff’s counsel to
Hunter Video Productions for $380.00 with the memo “Re: Depo of Dr. Hellman
(Stalvey).”
8 See Exhibit J, dkt. no. 83-10, an invoice from Debra Gilbert, Official U.S.
Court Reporter, for original and first copy of the bench trial transcript in
Staley v. USA, 5:18-cv-19, for $144.90, and a copy of a corresponding check
from Plaintiff’s counsel to Debra Gilbert for $144.90.
9 See Exhibit F, dkt. no. 83-6, a copy of a check from Plaintiff to Chatham
Orthopaedic Associates, PA for $1,000.00 with the memo “Safiamos Deposition.”
10 See Exhibit H, dkt. no. 83-8, an email from Dr. Hellman (via Stephanie Dorman)
requesting payment of $1,000.00 for Dr Hellman’s time for being deposed on
August 26, 2018, and a copy of a corresponding check from Plaintiff’s counsel
to Dr. Hellman for $1,000.00.
11 See Exhibit K, copies of checks from Plaintiff’s counsel to three medical
providers as follows: HIM Quality Solutions, Inc. (Georgia Sports Medicine
Prepayments) in the amount of $87.94, Rehabilitation Services of Coffee, Inc.
in the amount of $25.00, and Tift Regional Hospital for $35.58.

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Case 5:18-cv-00019-LGW-BWC Document 87 Filed 07/22/20 Page 3 of 13

In response, Defendant argues that Plaintiff is only entitled
to recover $1,830.95 in deposition costs (less $380.00 for the
videotaped deposition of Dr. Hellman, totaling $1,450.95), because
Plaintiff “failed to show a need” for deposition transcript copies
or the videotaped deposition of Dr. Hellman. 12 Dkt. No. 84 at 5.
Defendant further argues that it should not be taxed for the cost
of Plaintiff obtaining his medical records because he “provides no
explanation for what these records are, why they are necessary to
acquire, and whether they are even used at trial.” See Dkt. No. 84
at 6 (“Unless Stalvey provides further detail as to how these costs
are allowable under 28 U.S.C. § 1920, this portion of his Bill of
Costs should be excluded.”).
In reply to Defendant’s objections, Plaintiff explained why
he requested each deposition copy, videotaped Dr. Hellman’s trial
deposition, and obtained Plaintiff’s medical records. Dkt. No. 86
at 2-3. First, Plaintiff explained, he took Anthony Hall and D’Arcy
Jackson’s depositions at a time when Defendant denied liability in
this matter. Id. At that time, Plaintiff believed that those
depositions—along with a copy thereof—were necessary to create a

12

Defendant states that the $1,830.95 “deducts the costs of video and cuts in
half only those deposition invoices which explicitly note that copies were
ordered;” dkt. no. 84 at 6, however, taxation of $1,830.95 would only account
for reducing the costs of the depositions taken by Julie Lawrence and Coastal
Court Reporting in half. It does not account for the video. Defendant further
contends that Plaintiff is only entitled to half the requested amount for
depositions taken by Coffee & Arwood and Joyce Waters Reporting; however, should
additional copies of other depositions taken by other court reporters prove
unnecessary, then Defendant objects to those costs on the same grounds. Dkt.
No. 84 at 5n.1.

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Case 5:18-cv-00019-LGW-BWC Document 87 Filed 07/22/20 Page 4 of 13

discovery plan, draft pre-trial motions, and prepare for trial
itself, should either person be called as a witness. Id. Plaintiff
notes that “since the originals were sealed and cannot be unsealed
except by the Court,” a copy of each deposition was necessary to
further his case. Id. Second, although Defendant took Donald,
Candice, and Anniston Stalvey’s depositions, Defendant did not
provide Plaintiff with a courtesy copy of each. Id. Therefore,
Plaintiff obtained such copies on his own to create a discovery
plan, draft pre-trial motions, and prepare for trial itself. Id.
Third, Plaintiff explained that Dr. Hellman was deposed a
second

time

for

trial

purposes

because

Plaintiff

believed

testimony from his treating physician would be necessary to prove
his damages. Id. at 4. Moreover, he elected to have Dr. Hellman
testify in a videotaped deposition as opposed to appearing at trial
because,

in

his

view,

doing

so

was

more

cost

effective

and

respectful of Dr. Hellman’s other patients, who would be impacted
should Dr. Hellman miss a day of work to testify in this case. Id.
Defendant made no objection to Plaintiff deposing Dr. Hellman in
this manner, nor did Defendant object when Plaintiff played Dr.
Hellman’s videotaped deposition at trial.
Fourth, Plaintiff explained that he believed it necessary to
gather

Plaintiff’s

medical

records

to

present

evidence

of

Plaintiff’s past and future damages, to support Plaintiff’s claim
for medical bills, to allow his counsel to effectively depose

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Case 5:18-cv-00019-LGW-BWC Document 87 Filed 07/22/20 Page 5 of 13

Plaintiff’s treating physician, and to cross-examine any expert
witness called by Defendant. Id. at 3. Moreover, Plaintiff notes
that the parties “combined the medical records gathered” to use as
joint trial exhibits. Id.
In addition to these explanations, Plaintiff submitted more
exhibits in support of his Bill of Costs. Specifically, Plaintiff
presented an itemized break-down of the costs charged by Robinson
Court

Reporting

Services

for

the

original

Jackson

and

Hall

depositions, the copies thereof, and for the Stalvey family’s
respective

deposition

copies.

Dkt.

86-2.

Plaintiff

further

provided invoices reflecting that he was not charged for the copy
of certain other depositions. Dkt. Nos. 86-5, 86-8, 86-10. Finally,
Plaintiff presented an email from Defendant’s counsel in which he
requested Plaintiff send him “the [medical records] of any past or
future [medical] examination of Mr. Stalvey” for Defendants use
during this case. Dkt. No. 86-11.
Plaintiff’s
underpinnings

of

Reply

sufficiently

Defendant’s

addressed

objections.

The

the

question

factual
now

is

whether Plaintiff’s Bill of Costs, when read in conjunction with
his Reply Brief and exhibits thereto, is legally sufficient to
warrant the Court granting Plaintiff costs. The Court finds that
it is.

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Case 5:18-cv-00019-LGW-BWC Document 87 Filed 07/22/20 Page 6 of 13

LEGAL STANDARD
Costs

that

are

statutorily

authorized

are

presumptively

allowed to a prevailing party. Fed. R. Civ. P. 54 (d)(1); See W.
Va. Univ. Hospital, Inc. v. Casey, 499 U.S. 83, 86 (1991). The
non-prevailing party bears the burden of demonstrating that a
challenged cost is not taxable. See E.E.O.C. v. W. & O., Inc., 213
F.3d 600, 621 (11th Cir. 2000); see also Monelus v. Tocodrian,
Inc.,

609

F.

Supp.

2d

1328,

1333

(S.D.

Fla.

2009)

(“When

challenging whether costs are taxable, the losing party bears the
burden of demonstrating that a cost is not taxable, unless the
knowledge regarding the proposed cost is within the exclusive
knowledge of the prevailing party.”).
In deciding to award costs, the district court has discretion,
but such discretion is “not unfettered.” Chapman v. AI Transport,
229 F.3d 1012, 1039 (11th Cir. 2000) (en banc). First, the Court
can only tax the non-prevailing party for those costs specifically
enumerated in 28 U.S.C. § 1920, absent another explicit statutory
authorization. Crawford Fitting Co., 482 U.S. 437, 445 (1987). 13
Title 28 U.S.C. § 1920 provides:
A judge or clerk of any court of the United States may
tax as costs the following:

13

When a plaintiff brings and prevails on tort claims against the United States
government under the Federal Torts Claim Act, the plaintiff may recover § 1920
costs from the government. See Epling v. United States, 958 F. Supp. 312, 317
(W.D. Ky. 1997) (A party prevailing against the United States in an FTCA action
“is left with the waiver of sovereign immunity as tot costs under 28 U.S.C.
§ 1920.”).

6

Case 5:18-cv-00019-LGW-BWC Document 87 Filed 07/22/20 Page 7 of 13

(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;

(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.

Second, “[t]o

defeat

the

presumption

and

deny

full

costs,

a

district court must have and state a sound basis for doing so.”
Chapman, 229 F.3d at 1039.
DISCUSSION
Plaintiff is the prevailing party. Therefore, Plaintiff is
presumptively entitled to an award of costs, and Defendant bears
the burden of showing why these costs should not be taxed to it.
Defendant does not object to being taxed the following costs:
$400.00 for fees of the clerk, $60.00 for service of process fees,
and $80.00 for witness fees. Seeing no objection, this $540.00 is
taxed to the Defendant.
Defendant does object to the costs associated with obtaining
certain depositions in this case. Defendant also objects to the
cost of obtaining Plaintiff’s medical bills. Both costs are allowed

7

Case 5:18-cv-00019-LGW-BWC Document 87 Filed 07/22/20 Page 8 of 13

under §1920, if “necessarily obtained for use in the case.” 28
U.S.C. §§ 1920(2) (depositions), (4) (medical records). Likewise,
a copy of a necessary deposition is also taxable under § 1920(2).
See Desisto College v. Town of Howey-in-the-Hills, 718 F. Supp.
906, 912 (M.D. Fla. 1989), aff’d, 914 F.2d 267 (11th Cir. 1990).
Indeed, “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.” Helms v. Wal–Mart Stores,
Inc., 808 F. Supp. 1568, 1571 (N.D. Ga. 1992) (quoting George R.
Hall, Inc. v. Superior Trucking Co., Inc., 532 F. Supp. 985, 994
(N.D. Ga. 1982). In addition, depositions are deemed to have been
“necessary” under Rule 54(d) if they “appeared to be reasonably
necessary to the parties in light of the particular situation
existing at the time it was taken.” Cobb v. City of Roswell, Ga.,
987 F. Supp. 2d 1319, 1324 (N.D. Ga. 2013) (emphasis removed).
Finally, one copy of any necessary deposition taken in the
case is taxable. As the Northern District of Georgia explained,
“[a] party’s possession of an original deposition transcript is
virtually meaningless from [a] practical standpoint.” DiCecco v.
Dillard House, Inc., 149 F.R.D. 239, 242-43 (N.D. Ga. 1993).
Therefore, in general, all parties “require [at least] one copy of
each original deposition” taken in the case, regardless of who

8

Case 5:18-cv-00019-LGW-BWC Document 87 Filed 07/22/20 Page 9 of 13

took the deposition. Id. Accordingly, the costs of the deposition
transcript and at least one copy thereof may be taxed to the losing
party. See Id. at 243.
Here, Plaintiff obtained one original and/or one copy of each
deposition

listed

above

taken

during

the

normal

course

of

discovery. Insofar as it relates to the Stalveys, Plaintiff ordered
his

own

copy

of

the

depositions

taken

by

Defendant

because

Defendant did not provide him with a courtesy copy of the same.
Moreover, Defendant does not contend that any of the depositions
in question were taken beyond the proper bounds of discovery.
Instead, Defendant’s sole argument is that Plaintiff did not state
with enough specificity why he needed copies of certain depositions
nor

did

Plaintiff

provide

an

itemized

invoice

breaking

down

Plaintiff’s costs into transcript costs and copy costs. Although
the Court doubts whether such specificity is legally required for
Plaintiff to meet his burden, Plaintiff nonetheless provided such
details in his reply, dkt. no. 86, and attachments thereto, mooting
Defendant’s objections on this ground.
For example, Plaintiff explained that the one copy of each
deposition he obtained was necessary to further litigate his case
and prepare for trial. In support, Plaintiff attached multiple
invoices from vendors that broke down the costs into original and
copies

thereof

(when

appropriate

and

possible).

Therefore,

Plaintiff has met his burden, and is entitled to recover the full

9

Case 5:18-cv-00019-LGW-BWC Document 87 Filed 07/22/20 Page 10 of 13

cost

of

obtaining

printed

deposition

transcripts

and

copies

thereof in this case, totaling $2,421.60.
Second, videotaped depositions are taxable under § 1920(2)
(“Fees for . . . electronically recorded transcripts). In addition
to the text of the statute, Plaintiff relies on Morrison v.
Reichhold Chemicals, 97 F.3d 460, 465 (11th Cir. 1996), to argue
videotaped depositions are taxable to the losing party “when the
party taking the deposition notices the deposition to be videotaped
and the [losing] party does not object at that time to the manner
of recordation.” Dkt. No. 86 at 12. Morrison is somewhat outdated
because 28 U.S.C. § 1920 was subsequently amended to include costs
for “electronically recorded transcripts;” however, the reasoning
underlying Morrison still applies today. If the losing party makes
no objection at the time of recording and the prevailing party
reasonably believes video-recording the deposition is necessary to
his case, then the cost of video-recording the deposition is
taxable to the losing party. See Dopson v. Steverson, :17-cv-053,
2018 WL 6617647, at *1 (S.D. Ga. Dec. 18, 2018).
Here, Defendant contends that the costs of the videotaped
trial deposition of Dr. Hellman is not taxable to Defendant because
Plaintiff

failed

to

state

why

the

videotaped

deposition

was

necessary. In reply, Plaintiff contends that Dr. Hellman’s video
deposition was necessary because Plaintiff believed Dr. Hellman’s
treating physician testimony was necessary to is case and doing so

10

Case 5:18-cv-00019-LGW-BWC Document 87 Filed 07/22/20 Page 11 of 13

in this manner would only be cost effective but would allow Dr.
Hellman

to

continue

treating

his

patients

with

interruption.

Finally, Defendant was given notice of Dr. Hellman’s videotaped
deposition

and

did

not

object

to

the

video-recording

of

Dr.

Hellman’s trial testimony (in addition to a written transcript),
nor did Defendant object when Plaintiff played Dr. Hellman’s
deposition

at

trial.

Accordingly,

the

cost

of

Dr.

Hellman’s

videotaped deposition is taxable to Defendant in the amount of
$380.00.

In

total,

the

costs

for

deposition

transcripts,

recordings, and copies thereof totaled $2,946.50, all of which is
taxable to the Defendant.
Next, Defendant objects to being taxed the costs of copying
and

printing

Medicine

Plaintiff’s

($87.94),

medical

Rehabilitation

records

from

Services

of

Georgia
Coffee,

Sports
Inc.

($25.00), and Tift Regional Hospital ($35.58) (totaling $148.52).
Copies attributable to discovery are recoverable under § 1920,
including costs of medical records. E.E.O.C. v. W & O Inc., 213
F.3d 600, 623 (11th Cir. 2000). The costs of documents, discovery,
and exhibits tendered to the opposing party or submitted to the
court are also taxable under § 1920(4). Scroggins v. Air Cargo,
Inc., 534 F.2d 1124, 1133 (5th Cir. 1976).
Here, Defendant argues that it is “unable to consent” to being
taxed for these costs because it does not what those records are,
why they were necessary, and whether such records “were even used

11

Case 5:18-cv-00019-LGW-BWC Document 87 Filed 07/22/20 Page 12 of 13

at trial.” Dkt. No. 85 at 6. This argument is suspect under the
facts of this case, wherein Defendant made an explicit request to
Plaintiff

“for

the

[medical

[medical]

examination

of

records]

Mr.

of

Stalvey,”

any

past

dkt.

no.

or

future

86-1,

and

collaborated with Plaintiff to create a joint exhibit list, which
were overwhelmingly comprised of medical records from Georgia
Sports Medicine, Rehabilitation Services of Coffee, Inc., and Tift
Regional

Hospital.

Indeed,

it

is

evident

to

the

Court

that

Plaintiff’s Bill of Costs is seeking to recover the cost of medical
records collected to support his tort claim against Defendant (and
to rebut any defenses Defendant intended to assert at the time).
As such, under 28 U.S.C. § 1920(4), Plaintiff is entitled to
recover copy fees for materials necessarily obtained for use in
the case, including his medical records. Accordingly, Defendant
shall be taxed the $148.52 for such records in this case.
CONCLUSION
For the reasons above, Defendant’s Motion for Bill of Costs,
dkt. no. 83, is GRANTED and Plaintiff is TAXED $3,635.02 for the
following necessary and statutorily permissible costs:
1.
2.
3.
4.
5.

Clerk Fees
Service of Process Fees
Deposition Costs
Witness Fees
Medical Record Production Costs

12

$400.00
$60.00
$2,946.00
$80.00
$148.52

Case 5:18-cv-00019-LGW-BWC Document 87 Filed 07/22/20 Page 13 of 13

SO ORDERED, this 22nd day of July, 2020.

_
HON. LISA GODBEY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

13