McFarland v. McFarland et al
Filing
263
ORDER granting in part and denying in part 260 Bill of Costs filed by Rhonda Van Es, Robert Van Es. Costs are taxed in favor of Robert Van Es and Rhonda Van Es in the amount of $1,920.84. The Clerk of court is directed to enter judgment in such amount in favor of Robert Van Es and Rhonda Van Es. Signed by Judge Mark W Bennett on 11/15/11. (Copy w/NEF mailed to pro se plaintiff) (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
BURNS F. MCFARLAND,
Plaintiff,
No. C08-4047-MWB
No. C09-4047-MWB
vs.
ROBIN MCFARLAND, et al.,
ORDER REGARDING DEFENDANTS
ROBERT VAN ES AND RHONDA
ES’S JOINT BILL OF COSTS
Defendants.
____________________
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. General Legal Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Objections To Joint Bill of Costs . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.
Burns’s Deposition Transcript Costs . . . . . . . . . . . . . . . . . . 6
2.
Costs of Deposition Transcript Copies . . . . . . . . . . . . . . . . . 7
3.
Videotaping deposition expenses . . . . . . . . . . . . . . . . . . . . 8
4.
Transcript from the Divorce Case
.................. 9
5.
Transfer cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.
Copies of Medical Records . . . . . . . . . . . . . . . . . . . . . . . 10
7.
Photocopies of Summary Judgment Documents . . . . . . . . . 11
8.
Conference Room Rental . . . . . . . . . . . . . . . . . . . . . . . . 11
III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
This case is before me on two defendants’ Joint Bill Of Costs. These defendants
seek reimbursement for certain litigation expenses pursuant to Rule 54(d) of the Federal
Rules of Civil Procedure and 28 U.S.C. § 1920. The plaintiff objects to some of the costs
sought by the defendants, arguing that certain items are not authorized or do not meet the
requirements for an award under § 1920.
I. INTRODUCTION AND BACKGROUND
On June 11, 2008, Plaintiff Burns McFarland filed his pro se Complaint in case no.
C08-4047-MWB, against Robin McFarland, Dori Groenendyk, and Robin’s School of
Dance & Tumbling. In that lawsuit, Burns alleged that Robin falsely accused him of
domestic abuse in connection with their divorce proceedings and that Groenendyk and
Robin’s School of Dance & Tumbling conspired with Robin to slander, libel, and defame
Burns. On June 5, 2009, Burns filed his pro se Complaint in case no. C09-4047-MWB,
against 42 defendants, including Robert Van Es, and Rhonda Van Es (“the Van Eses”),
Robin’s parents.
This second lawsuit also alleged actions taken by defendants in
connection with the McFarlands’ divorce.
Specifically, Burns alleged that defendants
conspired to slander, libel, and defame him; to tortiously interfere with his business
relationships; and to commit fraud and fraud in the inducement. On July 1, 2009, Case
no. C08-4047-MWB was consolidated, pursuant to Federal Rule of Civil Procedure
42(a)(2), with Case no. C09-4047-MWB, because both cases involved common questions
of law and fact. However, on September 20, 2011, I granted the Van Eses’ motions for
summary judgment, finding that the Van Eses made no statements defaming Burns outside
of the McFarlands’ divorce proceedings, and their statements made during the divorce
proceedings were privileged.
2
On October 4, 2011, the Van Eses filed their Joint Bill of Costs (docket no. 260)
seeking the following: (1) $123.96 for Burns’s videotape deposition; (2) $1,286.29 for a
transcript of Burns’s deposition; (3) $10.69 for “Copies of McFarland Deposition from
Floppy Disc’s on to CD so transcripts could be used for summary judgment motions and
trial (The firm does not have computers which use floppy discs anymore”); (4) $94.50 “for
Transcript of Court Proceedings”; (5) $65.91 for “Leased location for depositions, divided
equally by counsel at the time”; (6) $1,424.16 for “deposition transcripts of Burns
McFarland, Robin Van Es, Robert Van Es, and Rhonda Van Es”; (7) $121.50 for
“deposition transcripts of Dr. Michael Baker”; (8) $20.00 for “copies of medical records”;
(9) $164.30 for “deposition transcripts of Denise Harrison, Gerald, and Kim Van Es”; (10)
$26.40 for “Deposition of Cherilyn Rozeboom”; and $200.50 for “Photocopies of Motion
for Summary Judgment Documents (2005 pages)”; for a total of $3,538.21 in requested
costs.
On October 17, 2011, Burns filed his Resistance to Defendants’ Petition for Bill of
Costs (docket no. 261). In Burns’s resistance, he asserts a number of arguments. First,
Burns argues that the costs of depositions are unreasonably high. Second, Burns argues
that the Van Eses’ are seeking to recover certain costs paid for by another defendant,
Robin. Third, he contends that the Van Eses should not be able to recover deposition
transcript costs for copies of his deposition because defendants prolonged the length of his
deposition for almost seven days. Fourth, Burns asks that I disallow recovery of the
$94.50 costs of a transcript in the McFarlands’ divorce proceedings because the Van Eses
do not indicate the subject or purpose for obtaining this transcript. Fifth, Burns objects
to the $10.69 cost of transferring depositions from a floppy disc to a CD, arguing that this
cost is akin to an attorney’s overhead. Sixth, Burns objects to the $20.00 cost of copies
of medical records because they were not necessary to the case. Seventh, he argues that
3
the Van Eses are not entitled to recover the entire $200.50 cost of photocopies for
summary judgment documents because the Van Eses obtained multiple copies of these
documents. Finally, Burns objects to the $65.91 cost for rental of a conference room
center used for taking depositions on the ground that he already paid a portion of the costs
for renting the room and the Van Eses should bear the remainder of this cost. The Van
Eses did not file a reply to Burns’s resistance
II. ANALYSIS
A. General Legal Standards
Federal Rule of Civil Procedure 54 provides that “costs—other than attorney’s
fees—should be allowed to the prevailing party.” FED. R. CIV. P. 54(d)(1). The Eighth
Circuit Court of Appeals has explained that Rule 54(d) “represents a codification of the
‘presumption that the prevailing party is entitled to costs.’” Greaser v. State, Dept. of
Corrections, 145 F.3d 979, 985 (8th Cir. 1998) (quoting Bathke v. Casey’s General
Stores, Inc., 64 F.3d 340, 347 (8th Cir.1995)); see also 168th and Dodge, LP v. Rave
Reviews Cinemas, L.L.C., 501 F.3d 945, 957 (8th Cir. 2007) (“A prevailing party is
presumptively entitled to recover all of its costs.”) (quoting In re Derailment Cases, 417
F.3d 840, 844 (8th Cir.2005)); Poe v. John Deere Co., 695 F.2d 1103, 1108 (8th Cir.
1982) (“Costs, unlike attorney’s fees, are awarded to a prevailing party as a matter of
course, unless the district court directs otherwise; unusual circumstances need not be
present.”) (citing NOW v. Bank of California, 680 F.2d 1291, 1294 (9th Cir.1982); Croker
v. Boeing Co., 662 F.2d 975, 998-99 (3d Cir.1981); Johnson v. Nordstrom-Larpenteur
Agency, Inc., 623 F.2d 1279, 1282 (8th Cir. 1980), cert. denied, 449 U.S. 1042, 101
S.Ct. 622, 66 L.Ed.2d 504 (1980); Jones v. City of San Antonio, 568 F.2d 1224, 1226 (5th
Cir.1978)).
“Despite this presumption, however, the district court has substantial
4
discretion in awarding costs to a prevailing party.” Id. (citing Zotos v. Lindbergh School
Dist., 121 F.3d 356, 363 (8th Cir.1997)); see also Pershern v. Fiatallis North America,
Inc., 834 F.2d 136, 140 (8th Cir. 1987) (“[W]ithin the statutory framework of costs
eligible to be taxed, the district court has discretion in determining and awarding costs in
a given case.”); Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 762 (8th Cir. 2006)
(“Rule 54(d) presumes an award of costs to the prevailing party; however, the district
court has substantial discretion in awarding costs.”) (citing Computrol, Inc. v. Newtrend,
L.P., 203 F.3d 1064, 1072 (8th Cir.2000)); Cross v. General Motors Corp., 721 F.2d
1152, 1157 (8th Cir. 1983) (“Under Rule 54(d), allocation of costs is within the sound
discretion of the trial court.”).
“Rule 54(d) is phrased in permissive terms and generally grants a federal court the
discretion to refuse to tax costs in favor of the prevailing party.” Marmo, 457 F.3d at
762; see also Cross, 721 F.2d at 1157 (The court cited the plaintiff’s “limited financial
resources” as a reason to award only a partial award of costs to the defendant.). When a
district court denies costs, it must provide a rationale for doing so. See Thompson v. WalMart Stores, Inc., 472 F.3d 515, 517 (8th Cir. 2006). “A general statement of fairness
is insufficient, without more, to rebut the Rule 54(d)(1) presumption for an award of costs
to the prevailing party.” Id. If appealed, the Eighth Circuit Court of Appeals will “review
the district court’s denial of costs for abuse of discretion.” Greaser, 145 F.3d at 985
(citing Milton v. City of Des Moines, Iowa, 47 F.3d 944, 947 (8th Cir.1995)). However,
“[a] court of appeals lacks jurisdiction to hear an appeal where the sole issue is that the
district court abused its discretion as to the amount of costs awarded.” Poe, 695 F.2d at
1109.
The following costs are recoverable:
5
(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.
28 U.S.C. § 1920. “[F]ederal courts are bound by the limitations set out in section 1920.”
168th and Dodge, LP, 501 F.3d at 957.
With these general standards in mind, I turn to consider Burns’s objections to the
Joint Bill of Costs.
B. Objections To Joint Bill of Costs
1.
Burns’s Deposition Transcript Costs
Burns objects to the costs associated with his deposition. Burns argues that his
deposition was investigative in nature and defendants prolonged the length of his deposition
for almost seven days. I find the costs of Burns’s deposition transcripts are recoverable
because the deposition transcript was “necessarily obtained for use in the case.” See 28
U.S.C. § 1920(2). A court has discretion to award costs if the deposition was “necessarily
obtained for use in a case” and was not “purely investigative.” Zotos v. Lindbergh Sch.
Dist., 121 F.3d 356, 363 (8th Cir. 1997). Although Burns’s deposition was lengthy, this
was due almost entirely to the fact that Burns named 42 defendants in his Amended
Complaint. Clearly, Burns’s deposition was “necessarily obtained for use in the case” and
the costs, $1,286.29, are recoverable pursuant to § 1920(2). Burns’s objection to these
costs is overruled.
6
2.
Costs of Deposition Transcript Copies
Burns also objects to the Van Eses’ request for the costs associated with obtaining
a copy of the transcripts of Burns, the Van Eses, Robin Van Es, Dr. Michael Baker,
Denise Harrison, Gerald Van Es, Kim Van Es, and Cherilyn Rozenboom. Burns requests
that I disallow these costs. Alternatively, Burns argues that the $1.00 to $1.50 per page
charge for each copy is excessive and I should limit the Van Eses to $0.10 per page for
these copies. Burns’s initial argument is foreclosed by the guidance set out in United
States District Court for the Northern District of Iowa, Guidelines on Taxation of Costs by
the Clerk of Court at 5 (“The Guidelines”) (unpublished manuscript, on file with the
Northern District of Iowa). The Guidelines specifically state that “[c]osts allowed for
taxable depositions may include, among others, the stenographer’s fee, the cost of original
transcript and one copy, the fee and mileage allowance of witnesses, and costs of copies
of papers obtained as exhibits in the deposition.” Id. (emphasis added). Thus, the
Guidelines specifically provide for the costs associated with the original transcript and one
copy. Although I am not required to award these costs, I find it is equitable to do so here.
What is less clear, however, is the amount the Van Eses are entitled to recover for these
copies. The Guidelines, although making it clear I can award these costs to a prevailing
party, are silent on what amount is considered reasonable. Therefore, it appears the
amount allotted for copies is within my sole discretion. Here, the Van Eses chose to
obtain copies directly from the court reporter, and they were charged anywhere from $1.00
to $1.50 per page for copies. Such an amount, in my estimation, is unreasonable because
the Van Eses were not required to obtain copies from the court reporter and could have
secured copies at a more reasonable fee from another source. Thus, although the Van Eses
are entitled to reimbursement for copies, in my discretion, I will only allow them to
recover costs at the more reasonable rate of $0.10 per page for each copy. See Bunda v.
7
Potter, No. C03-3102-MWB, 2006 WL 266513, at *8 (N.D. Iowa Jan, 31, 2006)
(allowing defendant to recover “the more reasonable rate of $0.10 per page” for a
deposition copy instead of $0.25 to $1.00 per page sought for copies obtained from court
reporter). This price reflects the actual costs of photocopying the Van Eses seek in another
portion of their Joint Bill of Costs. Therefore, I conclude the Van Eses are entitled to
$138.70, rather than the requested amount of $1450.80, for copies of transcripts under 28
1
U.S.C. § 1920(2).
3.
Videotaping deposition expenses
Next, Burns objects to the costs for videotaping his deposition on the ground these
costs were incurred by Robin Van Es’s counsel, J.J. Puk, and there is no indication that
1
My conclusion is based on the following calculations:
Name
Deposition pages
Invoice amount
Amount awarded
Burns McFarland
788
$788.00
$78.80
Robin Van Es
223
$223.00
$22.30
Robert Van Es
100
$100.00
$10.00
Rhonda Van Es
72
$72.00
$7.20
Dr. Michael Baker
78
$78.00
$7.80
Denise Harrison
77
$115.50
$7.70
Gerald Van Es
19
$28.50
$1.90
Kim Van Es
13
$19.50
$1.30
Cherilyn
Rozeboom
17
$26.30
$1.70
Total
$1450.80
$138.70
8
the Van Eses ever paid a portion of this bill. Burns’s objection to this expense is
sustained. American Legal Media’s invoice for Burn’s videotaped deposition is attached
to the Van Eses’ Joint Bill of Costs as Appendix 1. This invoice, seeking the sum of
$939.00, is made out to J.J. Puck. The Van Eses are seeking $123.96 of this cost, or
roughly 1/7th of the cost of Burns’s videotaped deposition. While the Van Eses may well
be seeking reimbursement for their share of the cost of Burns’s videotaped deposition, they
have not submitted any documentation indicating that they have paid any portion of this
cost. Therefore, this portion of the Van Eses’ Joint Bill of Costs is denied.
4.
Transcript from the Divorce Case
Burns further objects to the Van Eses’ request for reimbursement, in the sum of
$94.50, for a 27 page original transcript from the McFalrands’ divorce proceedings. The
Van Eses have not identified the subject of this transcript, nor their purpose in obtaining
it. “Items proposed by prevailing parties ‘as costs should always be given careful
scrutiny.’” In re Williams Secs. Litiig.- WCG Subclass, 558 F.3d 1144, 1147 (10th Cir.
2009) (quoting U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1245 (10th Cir.
1988), overruled on other grounds as recognized by Anixter v. Home–Stake Prod. Co., 77
F.3d 1215, 1231 (10th Cir. 1996)). The charges of the court reporter for transcripts
reasonably necessary for use in the case, even though not used at trial, are recoverable
upon a proper showing. See 28 U.S.C. § 1920(4); Slagenweit v. Slagenweit, 63 F.3d 719,
721 (8th Cir. 1995) (per curiam) (upholding award of costs for a deposition even though
deposition was not introduced at trial); see also EEOC v. W & O, Inc., 213 F.3d 600, 623
(11th Cir. 2000) (“‘Copies attributable to discovery’ are a category of copies recoverable
under § 1920(4).”); Disc Golf Ass’n, Inc. v. Champion Discs, Inc., 158 F.3d 1002, 1010
(9th Cir. 1998) (“Under [§ 1920(4) ], the copies need not actually have been used as
evidence to justify an award of costs.”). I find the Van Eses have failed to
9
provide sufficient evidence to show that the divorce transcript was “necessarily obtained
for use in the case.” 28 U.S.C. § 1920(4). This is because the Van Eses have not even
identified the portion of the divorce proceeding or their purpose in obtaining it. Therefore,
I sustain Burns’s objection and will not award the Van Eses’ requested costs for the
transcript from the McFalrands’ divorce proceedings.
5.
Transfer cost
Burns also objects to the Van Eses’ requested $10.69 cost for transferring
depositions from a floppy disc to a CD. Burns argues that this cost is akin to an attorney’s
overhead and should be disallowed. The costs for transcript conversion fees are often not
allowable because they are frequently for the benefit of counsel and they “are not listed in
the statute or rules as recoverable costs.” Rakes v. Life Investors Ins. Co. of Am., No.
06–CV–99–LRR, 2008 WL 4852932, at *9 (N.D. Iowa Nov. 7, 2008), abrogated on other
grounds by Craftsmen Limousine, 579 F.3d 894; see also EEOC v. CRST Van Expedited,
Inc., No. 07-CV-95-LRR, 2010 WL 520564, at *19 (N.D. Iowa Feb. 9, 2010)
(disallowing costs of conversion of depositions to DVD as attorney fees); Bunda, 2006 WL
266513, at *8 (finding disc fees not recoverable). Here, however, the Van Eses have
demonstrated that conversion of the floppy disc was necessary for obtaining the deposition
transcript. The Van Eses’s counsel had to convert the depositions from the original floppy
disc provided by the court reporter to a CD in order to access them on the firm’s
computers. Accordingly, Burns’s objection is overruled and the Van Eses’ requested cost
in the amount of $10.69 is allowed to be taxed.
6.
Copies of Medical Records
Burns next objects to the $20.00 cost of copies of medical records because they
were not necessary to the case. The Van Eses have offered no explanation of the subject
of the medical records or their relevance. Without a meaningful explanation, I am unable
10
to determine whether the cost of these medical records was necessarily obtained for use
in the case. See Battenfeld of Am. Holding Co., 196 F.R.D. 613, 617 (D. Kan. 2000)
(denying copy costs where prevailing parties submitted statements from copying services
without identifying the use made of the copied materials). Thus, Burns’s objection is
sustained and the Van Eses’ requested cost in the amount of $20.00 is disallowed.
7.
Photocopies of Summary Judgment Documents
Burns further objects to the $200.50 cost for 2005 pages of photocopies for
summary judgment documents. Burns contests this cost on the ground that the Van Eses
obtained ten copies of these documents, which Burns views as excessive. Because Robert
and Rhonda each filed separate summary judgment motions, each obtained five copies of
these documents which reflects the number of parties still involved in this lawsuit at the
time the Van Eses filed their motions for summary judgment. A court may tax “[f]ees for
exemplification and copies of papers necessarily obtained for use in the case.” 28 U.S.C.
§ 1920(4); see Haroco, Inc. v. American Nat’l Bank & Trust Co., 38 F.3d 1429, 1441 (7th
Cir. 1994) (affirming the $12,389.71 award for exemplification fees for the preparation,
copying, and collating of an exhibit to motion for summary judgment and also fees for
graphics services). I find that the cost for copying the summary judgment materials fall
squarely within this language. Therefore, Burns’s objection is overruled and the Van
Eses’ requested cost in the amount of $200.50 is allowed to be taxed.
8.
Conference Room Rental
Finally, Burns objects to the $65.91 cost for rental of a conference room center
which was used for taking depositions. Burns argues that this cost should be disallowed
on the ground that he already paid a portion of the cost for renting the room and the Van
Eses should bear the remainder of this cost. It is within my discretion to allow as costs
those expenses incurred in taking a deposition. The Van Eses, however, have offered no
11
explanation for why they resorted to renting a conference room for the taking of
depositions rather than using the offices of one of the attorneys involved in the case. Thus,
Burns’s objection is sustained and I will disallow this cost. See McIlveen v. Stone
Container Corp., 910 F.2d 1581 (7th Cir. 1990)(affirming denial of expenses associated
with renting of conference room for taking of deposition since deposition could have been
conducted from deponent’s home or office).
III. CONCLUSION
In light of the discussion above, I have made the following adjustments to the Van
Eses’ Joint Bill of Costs:
Item Requested
Amount Requested
Amount Allowed
Videotape Deposition of
Burns McFarland
$123.96
$0.00
Deposition transcripts of
Burns McFarland
$1,286.29
$1,286.29
Transfer from Floppy Disc
to CD
$10.69
$10.69
Transcript of Divorce
Proceeding
$94.50
$0.00
Conference Room Rental
$65.91
$0.00
Deposition Transcripts and
Copies of Burns
McFarland, Robin Van Es,
Robert Van Es, and
Rhonda Van Es
$1,424.16
$359.46
Deposition Transcript and
copy of Dr. Michael Baker
$121.50
$51.30
12
Copies of Medical Records
$20.00
$0.00
Copies of Deposition
Transcripts of Denise
Harrison, Gerald Van Es,
and Kim Van Es
$164.30
$10.90
Copy of Deposition
Transcript of Cherilyn
Rozeboom
$26.50
$1.70
Photocopies of Summary
Judgment Documents
$200.50
$200.50
TOTAL
$3538.31
$1920.84
For the reasons discussed above, the Joint Bill of Costs is granted in part and
denied in part. Costs are taxed in favor of Robert Van Es and Rhonda Van Es in the
amount of $1,920.84. The Clerk of Court is directed to enter judgment in such amount in
favor of Robert Van Es and Rhonda Van Es.
IT IS SO ORDERED.
DATED this 15th day of November, 2011.
__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?