Harris v. Goins et al

Filing 204

MEMORANDUM OPINION & ORDER: 1) Dfts' Bill of Costs 199 is GRANTED, in part, and DENIED in part. The Pla's objs to the dfts' BOC are sustained in part and overruled in part as explained w/in the Order; 2) The Clerk of the Court is DIRECTED to tax as costs the following items: a) $2,597.15 for printed or electronically recorded transcripts necessarily obtained for use in the case; b) $541.80 for necessary copies; c) $62.78 for appearance of Harold Rader; d)  6;66.27 for the appearance of Kevin Johnson; e) $64.09 for the appearance of Jeff Culver; f) $41.94 for the appearance of Dan Smoot; 3) In summary, the taxable costs awarded to the moving dfts total $3,373.73. Signed by Judge Danny C. Reeves on 4/26/18.(MRS)cc: COR, Clerk of the Court

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
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ALBERTO HARRIS,
Plaintiff,
V.
WILLIAM GOINS, et al.,
Defendants.
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Civil Action No. 6: 15-151-DCR

MEMORANDUM OPINION
AND ORDER

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This matter is pending for consideration of the Defendants Williams Goins, Patrick
Robinson, The City of Manchester, Kentucky, and Unlawful Narcotics Investigation
Treatment and Education, Inc.s’ Bill of Costs, documentation in support of the Bill of Costs,
the plaintiff’s objections, and the defendants’ response to the objections. [Record Nos. 199,
201, 202, 203] The Court will grant the defendants’ Bill of Costs, in part, for the reasons
discussed below.
Rule 54(d)(1) of the Federal Rules of Civil Procedure provides that “costs other than
attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise
directs . . . .” This language creates a strong presumption that the prevailing party will recover
its costs. Miles v. State of California, 320 F.3d 986, 988 (9th Cir. 2003); In re Paoli R.R. Yard
PCB Litigation, 221 F.3d 449, 462 (3d Cir. 2000); Contreras v. City of Chicago, 119 F.3d
1286, 1295 (7th Cir. 1997).

The party seeking costs, however, “bears the burden of

establishing that the expenses he seeks to have taxed as costs are authorized by applicable

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federal law . . . .” Epling v. United States, 958 F. Supp. 312, 317 (W.D. Ky. 1997) (quotation
omitted).
Taxable expenses are contained in 28 U.S.C. § 1920. Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437, 441-45 (1987). That section provides for recovery of:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript
necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers 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.
Harris objects to the defendants obtaining specific costs for photocopies and witness
fees for Christina Little and Harold Rader. Additionally, Harris makes an overall objection to
the award of costs based on indigence.
A.

Photocopying Expenses

A court may only tax copies of documents “necessarily obtained for use in the case.”
28 U.S.C § 1920(4); King v. Gowdy, 268 F. App’x 389, 391 (6th Cir. 2008). Harris argues
that the defendants have offered no details to allow the Court to determine that the defendants’
request for this expense meets this requirement.
The Sixth Circuit has instructed that district courts should not be a “simple rubber
stamp” for photocopying expenses. Bowling v. Pfizer, Inc., 132 F.3d 1147, 1151 (6th Cir.
1998).

Instead, a “district court should cast a strict eye toward counsel’s expense
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submissions.” Id. at 1152. Here, the defendants’ documentation filed in support of the amount
does not describe what was photocopied. Rather, the documentation simply lists the date, the
number of pages copied, the price per page, and a cursory description that states “IN-OFFICE
COPIES.” In response to Harris’ objections, the defendants concede that, “despite diligent
efforts to identify the specific pages printed for each line item, [they] are unable to provide
further detail of the exact records printed.” However, the defendants provide adequate
information to tax photocopying expenses for 5,418 pages at $.10 per page.1 And while the
defendants argue that $616.10 in printing and copying expenses should also be taxed (bringing
the total sought to $1,157.90) they provide no detail as to why the photocopies making up that
total were necessarily obtained for use in the case. Instead, they make a conclusory statement
that “these expenses represent copying and printing that was necessary for the case.” [Record
No. 203, p. 2] This explanation insufficient, and provides no further detail on what these
expenses represent. As a result, the defendants may only recover $541.80 in photocopying
expenses.
B.

Witness Fees

The plaintiff argues that because neither Christina Little nor Harold Rader testified at
trial, the Court should not tax costs associated with witness fees paid to them. The general
presumption is that “no fee may be taxed for someone who comes to the courthouse but does
not testify at trial.” Smith v. Joy Technologies, Inc., Civil No. 11-270-ART, 2015 WL. 428115,
at *7 (E.D. Ky. Feb. 2, 2015) (citing Charles Alan Wright & Arthur R. Miller, 10 Federal
Practice and Procedure § 2678 (3d ed.). However, following the reasoning in several other
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The 5,418 pages represent the following: 1,487 pages produced by the defendants; 839 pages
in plaintiff initial disclosures; and 3,092 pages filed in the record. See Record No. 203, p. 2.
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circuits, the Sixth Circuit has concluded that it is not an abuse of a district court’s discretion to
grant witness fees for a witness who would have testified had the district court not excluded
the testimony from other party’s expert witness. See Paschal v. Flagstar Bank, 297 F.3d 431,
438 (6th Cir. 2002). Here, Rader was present at the courthouse and would have testified, had
the Court not granted the defendants’ Rule 50 motion at the close of the plaintiff’s case. In
line with the reasoning in Paschal, Rader’s associated witness fee may be properly taxed.
Christina Little is a different story. She was a named defendant in this action but not
present during trial. And while she was under subpoena to testify, the defendants’ counsel
advised the Court at the time of trial that she was not present. It cannot be said that she would
have testified if the Court had denied the defendants’ motion at the conclusion of the plaintiff’s
case. Accordingly, the witness fee for Rader ($62.78) will be taxed, but the witness fee for
Christina Little will be disallowed.
C.

Indigence

There are several arguments a losing party can make that may be sufficient to overcome
the presumption in favor of awarding costs and expenses, including the losing party’s good
faith, the difficulty of the case, the winning party’s behavior, the necessity of the costs, and the
indigency of the losing party. Singleton v. Smith, 241 F.3d 534, 539 (6th Cir. 2001). Harris
claims he “is of very modest means,” due to being unemployed. The burden is on the losing
party to show inability to pay sufficient to overcome the strong presumption that the prevailing
party should recover its costs. Corder v. Lucent Techs. Inc., 162 F.3d 924, 929 (7th Cir. 1998).
Harris’ conclusory statement does not meet this burden. He has failed to show he is
indigent or that he would be unable to pay the award. Indeed, he submitted no documentary

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proof to substantiate the claim that he is having financial difficulties. Moreover, there is a
difference between having financial difficulties and being unable to pay.
Accordingly, it is hereby
ORDERED as follows:
1.

The defendants’ Bill of Costs [Record No. 199] is GRANTED, in part, and

DENIED, in part. The plaintiff’s objections to the defendants’ Bill of Costs are sustained, in
part, and overruled, in part, as explained more fully above.
2.

The Clerk of Court is DIRECTED to tax as costs, the following items:
a.

$2,597.15 for printed or electronically recorded transcripts necessarily

obtained for use in the case;
b.
c.

$62.78 for the appearance of Harold Rader;

d.

$66.27 for the appearance of Kevin Johnson;

e.

$64.09 for the appearance of Jeff Culver;

f.
3.

$541.80 for necessary copies;

$41.64 for the appearance of Dan Smoot.

In summary, the taxable costs awarded to the moving defendants total

$3,373.73.
This 26th day of April, 2018.

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