Street et al v. U. S. Corrugated, Inc.

Filing 73

MEMORANDUM OPINION AND ORDER by Judge Joseph H. McKinley, Jr. on 7/20/2011 re 59 Bill of Costs and 60 Objection. For the foregoing reasons, IT IS HEREBY ORDERED that the requested bill of costs is approved with the exception of the following: (1 ) $218.11 for the cost of obtaining medical records; (2) $1,406.25 for costs associated with file conversion; and (3) $1,054.15 for the cost of performing criminal background checks. Defendant is awarded costs of $4,903.70. cc: Counsel, pro se Defendants, USCA (CDF) Modified distribution on 7/20/2011 (CDF).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:08-CV-00153
ROBERT STREET,
LISA MURPHY,
ROBERT CREEK,
KRISTEEN OWENS, and
BRANDY FILBACK,

PLAINTIFFS

v.
U.S. CORRUGATED, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a bill of costs submitted by Defendant, U.S. Corrugated,
Inc., requesting the Court to tax costs in the amount of $7,582.21 against the Plaintiffs, Robert
Street, Lisa Murphy, Robert Creek, Kristeen Owens, and Brandy Filback, pursuant to Federal Rule
of Civil Procedure 54(d) and 28 U.S.C. § 1920 [DN 59]. Plaintiffs filed objections to the bill of
costs [DN 60]. Fully briefed, this matter is ripe for decision.
Federal Rule of Civil Procedure 54(d) “creates a presumption in favor of awarding costs, but
allows denial of costs at the discretion of the trial court.” White & White, Inc. v. Am. Hosp. Supply
Corp., 786 F.2d 728, 730 (6th Cir. 1986). See Ford v. FedEx Supply Chain Servs., Inc., 2009 WL
1585849, at *1 (W.D. Tenn. June 3, 2009) (“There is “a presumption in favor of awarding costs to
the prevailing party in accordance with Rule 54(d).”). Therefore, “[t]he party objecting to the
taxation bears the burden of persuading the Court that taxation is improper.” Roll v. Bowling Green
Metal Forming, LLC., 2010 WL 3069106, at *2 (W.D. Ky. Aug. 4, 2010) (citing BDT Prods., Inc.
v. Lexmark Intern., Inc., 405 F.3d 415, 420 (6th Cir. 2005)). In Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437 (1987), the Supreme Court held that a district court may award costs

only for those elements contained in 28 U.S.C. § 1920, which provides:
A judge or clerk of any court of the United States may tax as costs the
following:
(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.
Defendant seeks to recover $7,582.21 as costs. Plaintiffs argue that Defendant failed to
submit sufficient proof of payment, the bill of costs is excessive, and seeks compensation for items
that are not recoverable under § 1920. In particular, Plaintiffs focus upon Defendant’s costs of
depositions, filing fees, costs of copies of medical records, costs of email image conversion, and costs
of criminal background checks.
1. Proof of Payment
As an initial matter, Plaintiffs object to costs (a-m) and costs (p-q) because Defendant did not
submit sufficient proof of payment. However, Defendant has provided detailed invoices indicating
the amounts payable. Plaintiff has not submitted any case law or statutory rule that requires proof
of payment in lieu of an invoice in order to be awarded costs. Rule 39(c) of the Federal Rules of
Appellate Procedure for the Sixth Circuit states that in order to be awarded costs “[a]n itemized and

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verified bill of costs must be filed . . . . An affidavit of counsel with bills attached as exhibits will
usually suffice to prove costs.” Here, Defendant has included an affidavit and attached an itemized
invoice for each item. Accordingly, Defendant has provided sufficient information to receive costs
in this case.
2. Cost of Depositions
Plaintiffs argue that Defendant can not recover the full costs associated with the depositions
of Kristeen Owens ($577.50), Brandy Filback ($411.90), Robert Creek ($367.50), Lisa Murphy
($1,265.10), Robert Street ($683.40), and Robert L. Greathouse ($312.50) because Defendant is only
entitled to reimbursement for the cost of the original transcript. The Court disagrees.
As noted by the Sixth Circuit, “‘[o]rdinarily, the costs of taking and transcribing depositions
reasonably necessary for the litigation are allowed to the prevailing party.’” Sutter v. Gen. Motors
Corp., 100 F. App’x 472, 475 (6th Cir. 2004) (quoting Sales v. Marshall, 873 F.2d 115, 120 (6th Cir.
1989)). Similarly § 1920(2) authorizes taxation of the “[f]ees of the court reporter for all or any part
of the stenographic transcript necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). Here,
Plaintiffs are objecting to the costs associated with the copies of the depositions. However, the Court
finds that copies of the deposition transcripts were reasonably necessary. See Cunningham v. Target
Corp., 2010 WL 1032772, at *2 (W.D. Ky. Mar. 17, 2010) (Court finding “that the transcripts and
copies of transcripts obtained by Target were reasonably necessary for use in the case and not merely
for the convenience of counsel. The Court agrees with other circuits that have specifically held
copies of deposition transcripts may be taxed transcripts, the condensed transcripts, indexing,
exhibits, and e-transcripts.”). Thus, the costs associated with the depositions are properly taxable
costs.

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3. Filing Fee
Defendant also requests the $350.00 filing fee for the removal of the case from Jefferson
Circuit Court to the Western District of Kentucky to be taxed to Plaintiffs. Plaintiffs argue that
Defendant is not entitled to recover the filing fee because Defendant removed the case voluntarily.
Title 28 U.S.C. § 1920(1) explicitly allows “[f]ees of the clerk” to be taxed. Therefore, “a removal
filing fee is a fee allowed under § 1920(1) and may be taxed as part of costs.” Roll, 2010 WL
3069106 at *2 (citing Card v. State Farm Fire & Cas. Co., 126 F.R.D. 658, 660 (N.D. Miss. 1989);
77 C.J.S. Removal of Cases § 200 (2011) (“In a removed case, the removal filing fee may be taxed
as part of costs.”)). Accordingly, the Court finds that the removal filing fee is a properly taxable cost.
4. Copies of Medical Records, File Conversion, and Criminal Background Checks
Defendant additionally seeks $218.11 for the costs of obtaining copies of medical records,
$1,406.25 for conversion of their own files to Tiff/Load files (CPU), and $1,054.15 for the cost of
performing criminal background checks. Plaintiffs argue that the costs incurred were unnecessary.
The Court agrees. Defendant has not provided any support as to how such records were necessary
to the issues presented here - employment discrimination and wrongful termination. Accordingly,
Defendant is not entitled to these costs.

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CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that the requested bill of costs is
approved with the exception of the following: (1) $218.11 for the cost of obtaining medical records;
(2) $1,406.25 for costs associated with file conversion; and (3) $1,054.15 for the cost of performing
criminal background checks. Defendant is awarded costs of $4,903.70.

July 20, 2011

cc. Counsel of Record

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