Hyland et al v. Homeservices of America, Inc. et al
MEMORANDUM OPINION & ORDER by Senior Judge Thomas B. Russell on 5/6/2013; re 752 Bill of Costs, filed by Rector-Hayden Realtors, Homeservices of America, Inc., Semonin Realtors, Homeservices of Kentucky, Inc., 753 Response, filed by Christopher R. Burnette, Mystic Burnette, 751 Bill of Costs filed by Coldwell Banker McMahan Co. ; see order for specificscc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 3:05-CV-00612-TBR
CASEY WILLIAM HYLAND, et al.
HOMESERVICES OF AMERICA, INC., et al.
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendant McMahan Company, Inc., d/b/a
Coldwell Banker McMahan Company’s (McMahan) Bill of Costs, (Docket No. 751), and
Defendants HomeServices of America, Inc. and HomeServices of Kentucky, Inc. d/b/a
Semonin Realtors and Rector-Hayden Realtors’ (collectively “HomeServices”) Bill of
Costs, (Docket No. 752). Plaintiffs have objected, (Docket No. 753), and McMahan and
HomeServices have replied, (Docket Nos. 754 & 755, respectively). This matter is now
ripe for adjudication.
For the reasons that follow, McMahan and HomeServices’
respective Bills of Costs will be GRANTED.
On July 18, 2012, the Court granted Defendants’ motions for summary judgment
and dismissed Plaintiffs’ claims with prejudice. (Docket Nos. 743; 744.) McMahan and
HomeServices timely submitted their Bills of Cost, McMahan claiming expenses totaling
$19,516.38, (Docket No. 751, at 1), and HomeServices claiming expenses totaling
$87,305.57, (Docket No. 752, at 1). Plaintiffs object to one category of costs claimed by
McMahan and one category of costs claimed by HomeServices. (Docket No. 753, at 5Page 1 of 7
8.) Plaintiffs additionally argue that the Court should defer ruling on costs until the
appellate process is completed. (Docket No. 753, at 3-4.)
Federal Rule of Civil Procedure 54(d)(1) provides that a prevailing party is
generally allowed to recover costs, other than attorneys’ fees. 28 U.S.C. § 1920 specifies
what costs may be taxed. Any costs taxed by the Court must be allowed under § 1920
and must be reasonable and necessary in amount. See BDT Prods., Inc. v. Lexmark Int’l,
Inc., 405 F.3d 415, 417 (6th Cir. 2005), abrogated on other grounds by Taniguchi v. Kan
Pac. Saipan, Ltd., 132 S.Ct. 1997 (2012). There is a presumption in favor of awarding
costs to the prevailing party in accordance with Rule 54(d). Singleton v. Smith, 241 F.3d
534, 539 (6th Cir. 2001); Ford v. FedEx Supply Chain Servs., Inc., 2009 WL 1585849, at
*1 (W.D. Tenn. June 3, 2009). The party objecting to the taxation bears the burden of
persuading the Court that taxation is improper. BDT Prods., 405 F.3d at 420; Cooley v.
Lincoln Electric Co., 776 F. Supp. 2d 511, 574 (N.D. Ohio 2011).
Deferral of Taxing Costs Pending Conclusion of Appeal
This matter is currently pending on appeal before the Sixth Circuit Court of
Appeals as case number 12-5947.
Plaintiffs request that the Court defer ruling on
Defendants’ Bills of Costs and imposing any costs until the appellate process is
completed. Plaintiffs reason that the interests of judicial economy favor deferring any
imposition of costs until a decision has been issued by the court of appeals. The Court
disagrees and finds the various authorities relied upon by the Plaintiffs unpersuasive to
support this contention. Moreover, district courts throughout this Circuit have routinely
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rejected the argument that the taxation of costs should await the conclusion of an appeal.
See, e.g., Cooley, 776 F. Supp. 2d at 575 (finding that ruling on a motion for costs before
or during the pendency of an appeal furthers the interests of judicial economy by
avoiding piecemeal litigation); 1704 Farmington, LLC v. City of Memphis, 2010 WL
890995, at *2 (W.D. Tenn. Mar. 9, 2010) (noting that “Plaintiffs have cited no authority
for the proposition that a district court should stay bills of costs pending the resolution of
a case on appeal” and finding it “more efficient to rule on costs now rather than delay the
decision until the appeal is resolved”), aff’d 437 F. App’x 387 (6th Cir. 2011); Singleton
v. Select Specialty Hosp.-Lexington, Inc., 2009 WL 1636177, at *4 (E.D. Ky. June 10,
2009) (noting that “[d]istrict courts have authority to tax costs after a judgment is entered
despite an appeal being taken”); Blackshear v. Shelby Cnty. Health Care Corp, 2007 WL
1655887, at *1-2 (W.D. Tenn. June 5, 2007) (denying request to stay ruling on bill of
costs pending appeal). Accordingly, the Court finds no basis for deferring the taxation of
costs pending resolution of this matter on appeal and, therefore, will DENY Plaintiffs’
Objections to Defendant McMahan’s Photocopying Costs
McMahan seeks $1,293.60 for photocopying expenses.
Plaintiffs argue that
McMahan “has failed its burden even to try to demonstrate why it was reasonable or
necessary to make 11 copies, or why 15 cents per page is reasonable.” (Docket No. 753,
Section 1920 allows for “[f]ees for exemplification and the costs of making copies
of any materials where the copies are necessarily obtained for use in the case.”
“Photocopies are necessary to the extent they ‘were used as court exhibits or were
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furnished to the Court or the opposing counsel.’” Cooley, 776 F. Supp. 2d at 576
(quoting Arthur S. Langenderfer, Inc. v. S.E. Johnson Co., 684 F. Supp. 953, 961 (N.D.
First, Plaintiffs argue that the Court should disallow McMahan’s claimed
photocopying expenses for eleven duplicate copies of certain documents as merely for
counsel’s convenience and not a necessary expense. (Docket No. 753, at 7.) Plaintiffs
also argue that because this Court mandates the use of electronic document filing, these
photocopying costs should be disallowed as unnecessary when documents are required to
be filed electronically. (Docket No. 753, at 7-8.) The Court agrees that a prevailing party
is not permitted to recover copying expenses where those copies were obtained merely
for the convenience of counsel. See Cunningham v. Target Corp., 2010 WL 1032772, at
*3 (W.D. Ky. Mar. 17, 2010).
Plaintiffs’ argument, however, is without merit.
McMahan explains in its itemization of costs that these copies were for “[h]ard copies of
documents filed under seal required for service,” (Docket No. 751-1, at 9-11), and
attaches to its reply a copies of the relevant certificates of service for these documents,
(Docket No. 754-1). The Court’s electronic filing system does not serve sealed filings
but instead requires that the filing party “use alternate forms of service to provide any
parties entitled to notice with copies of the sealed document.” Joint General Order 11-01
(Jan. 21, 2011). Thus, because these documents were required service copies, the Court
is satisfied that McMahan has met its burden of demonstrating that these copies were
reasonably necessary. See Cooley, 776 F. Supp. 2d at 576.
Second, the Court finds that fifteen cents per page is reasonable. Other district
courts, both within this Circuit and without, have approved the same or higher per-page
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rates as reasonable. See Charboneau v. Severn Trent Labs., Inc., 2006 WL 897131, at *2
(W.D. Mich. Apr. 6, 2006) (awarding photocopying costs at rates of twenty cents per
page and thirty-five cents per page); U.S. Commodity Futures Trading Comm’n v.
WeCorp, Inc., 878 F. Supp. 2d 1160, 1164 (D. Haw. 2012) (awarding photocopying costs
at a rate of fifteen cents per page); Porter v. McDonough, 2011 WL 821181, at *3 (D.
Minn. Mar. 2, 2011) (“[T]he rate at which Defendants are seeking to recover their copy
costs (15 cents per page) is reasonable.”).
For these reasons, the Court finds that McMahan has satisfied its burden of
demonstrating that the claimed photocopying costs to which Plaintiffs object were
reasonable and necessary for use in this case. Plaintiffs have not met their burden of
persuading the Court that taxation of the photocopying costs itemized by McMahan is
Therefore, the Court will OVERRULE the Plaintiffs’ objections to the
$1,293.60 in photocopying expenses claimed by McMahan and will GRANT McMahan’s
Bill of Costs.
Objections to Defendant HomeServices’ Video Deposition Costs
HomeServices seeks $16,579.60 in costs for videotaping the depositions of
Plaintiffs and Plaintiffs’ experts. Plaintiffs argue that HomeServices has “failed their
burden to show that videotaping is a taxable cost here, or that Plaintiffs and Plaintiffs’
experts somehow magically would not have appeared at trial to testify in person.”
(Docket No. 753, at 5.) In this regard, Plaintiffs insist that “Plaintiffs and Plaintiffs’
experts would have testified at trial” and that HomeServices “cannot reasonable have
anticipated that either Plaintiffs or their experts would not appear to testify at trial.”
(Docket No. 753, at 7.)
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Section 1920 allows for “[f]ees for printed or electronically recorded transcripts
necessarily obtained for use in the case.” This Circuit accords with other circuit and
district courts in recognizing that video deposition costs are taxable under § 1920 and that
both stenographic transcripts and videotaped depositions, together, may be taxed. See,
e.g., BDT Prods., 405 F.3d at 420 (citing Tilton v. Capital Cities/ABC, Inc., 115 F.3d
1471, 1477 (10th Cir. 1997)) (holding that “videotape depositions are taxable under
§ 1920” and that “it was proper to tax both the cost of videotaping and transcribing the
deposition”); Tilton, 115 F.3d 1477-78 (“[T]he costs associated with videotaping a
deposition are taxable under [§] 1920(2). . . . “[T]he district court did not abuse its
discretion in taxing the costs of both the preparation and transcription of the seven
videotaped depositions.”); Baisden v. I’m Ready Prods., Inc., 793 F. Supp. 2d 970, 978
(S.D. Tex. 2011) (awarding costs for both “videotaped and stenographic versions of the
depositions of [eleven witnesses]” under § 1920(2)); Meredith v. Schreiner Transp., Inc.,
814 F. Supp. 1004, 1005-06 (D. Kan. 1993) (awarding costs for both videotaped
depositions and stenographic transcripts of those depositions) .
HomeServices avers that the video deposition costs were reasonably and
necessarily incurred in their defense of Plaintiffs’ claims. HomeServices points out that
video depositions were used only for Plaintiffs’ key witnesses, those being the Plaintiffs
themselves and their two experts.
HomeServices further maintains that they had a
reasonable expectation that both the video recordings and written transcripts of these key
witnesses would be needed in the preparation of their defense, both before and at trial.
(Docket No. 755, at 4-5.) In light of the Sixth Circuit’s decision in BDT Products, Inc. v.
Lexmark International, Inc. and the clear trend among federal courts, the Court will
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follow the prevailing practice of allowing taxation of both videotaped depositions and
For these reasons, the Court finds that HomeServices has explained its purpose
for these costs and, thus, has satisfied its burden of demonstrating that both the
videotaping and stenographic transcription of these depositions were reasonably
necessary for use in this case. Plaintiffs have not met their burden of persuading the
Court that taxation of these costs is improper. Therefore, the Court will OVERRULE the
Plaintiffs’ objections to the $16,579.60 in video deposition expenses claimed by
HomeServices and will GRANT HomeServices’ Bill of Costs.
Having considered the Defendants’ Bills of Cost and Plaintiffs’ objections
thereto, and being otherwise sufficiently advised, for the reasons set forth above;
IT IS HEREBY ORDERED as follows:
(1) Plaintiffs’ objections to Defendants’ Bills of Costs, (Docket No. 753), are
OVERRULED, and Plaintiffs’ request that the Court defer ruling on Defendants’
Bills of Costs and imposing any costs until the appellate process has been
completed is DENIED;
(2) Defendant McMahan Company, Inc., d/b/a Coldwell Banker McMahan
Company’s Bill of Costs, (Docket No. 751), is GRANTED;
(3) Defendants HomeServices of America, Inc. and HomeServices of Kentucky, Inc.
d/b/a Semonin Realtors and Rector-Hayden Realtors’s Bill of Costs, (Docket No.
752), is GRANTED.
IT IS SO ORDERED.
Date: May 6, 2013
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