Faith v. Warsome et al

Filing 76

MEMORANDUM OPINION AND ORDER signed by Senior Judge Charles R. Simpson, III on 2/26/2020 ; Granting 62 Motion to Modify cc: Counsel(ALS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

JEANELLE FAITH

PLAINTIFFS

vs.

CIVIL ACTION NO. 3:18-CV-323-CRS

MOHAMED S. WARSAME
and
SHIIDAAD TRUCKING CORPORATION

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendants’ motion to review Plaintiff’s bill of costs.
DN 62. Plaintiff filed a response, DN 63, and this matter is now ripe for adjudication. For the
following reasons, Defendants’ motion for review will be granted, and the Court will sustain
Defendants’ objections in part and award reduced costs against Plaintiff.
I. Background
On October 23, 2019, a jury reached a verdict in favor of the Plaintiff in her personal injury
lawsuit against Defendants. DN 53. Plaintiff timely submitted her bill of costs, claiming expenses
totaling $5,223.74. DN 58. This Court entered judgment on December 4, 2019. DN 61. Defendants
now object to $3,630.52 of Plaintiff’s claimed costs. DN 62-1 at 1.
II. Standard
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). 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 U.S. Dist. LEXIS 78946, 2010 WL 3069106, at *2 (W.D. Ky. Aug. 4, 2010)
(citing BDT Prods., Inc. v. Lexmark Intern., Inc., 405 F.3d 415, 420, abrogated in part on other

grounds, (6th Cir. 2005)). In Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 440 (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 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 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.
III. Discussion
Defendants argue that $3,630.52 of Plaintiff’s costs are not taxable under in 28 U.S.C. §
1920. The court will address each of the disputed costs.
A. Printed and Electronically Recorded Transcripts
Plaintiff seeks reimbursement for printed and electronically recorded transcripts of her
witnesses’ depositions. DN 58 at 1. Defendants argue 28 U.S.C. § 1920(4) expressly allows the
recovery of the cost of the originals of “printed or electronically recorded transcripts,” but not
both. DN 62-1 at 3 (Emphasis in Defendants’ motion). According to Defendants, “[n]o provision
allows the recovery of the cost of both formats or of copies of transcripts.” Id.
Defendants read § 1920 too narrowly. Under § 1920(2), “fees for printed or electronically
recorded transcripts necessarily obtained for use in the case” may be taxed as costs. Despite the

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drafter’s use of the word “or,” this provision empowers the trial court to tax the costs of both the
printed transcript and video of the same deposition. See BDT Prods., Inc. v. Lexmark Intern., Inc.,
405 F.3d 415, 420, abrogated in part on other grounds, (6th Cir. 2005)(holding that it is proper to
tax both the cost of videotaping and transcribing a deposition). Other than the use of the word “or”
in text of the statute, Defendants offer no reason why the printed and electronically recorded
transcripts are not taxable in this case. Defendants have failed to carry their burden of persuading
the Court that taxation was improper. Accordingly, both the printed and electronically recorded
transcripts are taxable.
B. Additional Fees
Defendants claim “Plaintiff erroneously included in her bill of costs…expedited delivery
fees, an ‘archival’ fee, and a ‘format conversion charge.’” DN 62-1 at 3. Defendants argue that
“[t]he prevailing rule is that successful litigants ‘could not recover delivery charges as costs, as
such charges were not among taxable costs itemized in 28 USCS § 1920.’” Id. (quoting Portman
v. Andrews, 249 F.R.D. 279 (N.D. Ill. 2007)). In her response, Plaintiff provides no reason why
these fees were necessary. Defendants have satisfied their burden of demonstrating that taxation
for these items was improper. Accordingly, the “media archival” fee ($20.00), the “video format
conversion” fee ($52.50), and the “expedited processing/delivery” fee ($100.00) are not taxable.
C. Attendance Fee and Travel Expenses for Joey Stidham
Defendants argue that the $292.20 Plaintiff seeks for the attendance and travel for expert
Joey Stidham is not taxable because he traveled further than the 100-mile subpoena power of the
Court. DN 62-1 at 4. Defendants provide no case law to support their theory that no travel expenses
(including the travel within 100 miles of the courthouse) are taxable for witnesses who travel
beyond the 100-mile subpoena power of the court. Plaintiff responds that “[p]ursuant to 28 U.S.C.

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§ 1920(3) the mileage and one day witness fee is all that was requested and is proper under the
rules and should be taxed.” DN 63 at 4.
Witness fees are included in the definition of costs under 28 U.S.C. § 1920(3). Three types
of witness fees may be taxable: attendance fees, travel expenses, and subsistence allowances for
witnesses who must stay overnight. 28 U.S.C. § 1821. Section 1821 does not explicitly limit the
distance for which travel expenses will be reimbursed. Some federal courts have limited the taxable
mileage to 200 miles, reasoning that parties should be reimbursed for no more than the cost for a
witness traveling to and from the courthouse within a 100-mile radius of the court. See, e.g.,
Farmer v. Arabian American Oil Co., 379 U.S. 227, 231 (1964). However, in Farmer the Supreme
Court held that courts are not bound by this 100-mile rule, and that courts have discretion in
determining whether costs beyond this radius are “necessary” within the meaning of Section 1920.
See id. at 232; see also Roberts v. S.S. Kyriakoula D. Lemos, 651 F.2d 201, 203 (3d Cir. 1981)
(“[M]ost courts now recognize that restrictions on their subpoena power are no barrier to taxing as
costs the travel expenses of a prevailing party's witness who appears from beyond the court's
reach.”). Indeed, the Sixth Circuit remanded a district court’s decision to reduce a party’s bill of
costs because the court failed to “specify the reasons why it exercised its discretion to deny travel
expenses outside of the 100 mile radius.” Trepel v. Roadway Express, Inc., 266 F.3d 418, 426 (6th
Cir. 2001)(emphasis added).
“In determining whether or not to allow travel expenses beyond the 100-mile limit, several
courts have looked to the relevance and necessity of the witness's testimony.” Freeman v. Minn.
Mining & Mfg. Co., Civil Action No. 84-577 - CMW, 1989 U.S. Dist. LEXIS 14915, at *9 (D.
Del. Dec. 12, 1989)(collecting cases); see also 10 C. Wright, A. Miller and M. Kane, Federal
Practice and Procedure § 2678, at 374 (1983)(stating that judges must weigh whether the

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testimony of the witness was relevant and material to an issue in the case, and reasonably necessary
to its disposition when determining whether the witness’ travel fees were taxable). This court will
allow as costs the travel expenses requested by Plaintiff because the testimony of the defendant's
expert witnesses was relevant and necessary to the disposition of this case. At trial, Stidham
testified about key elements related to witness credibility, causation, and accident reconstruction.
Therefore, the $292.20 Plaintiff seeks for the attendance and travel for expert Joey Stidham is
taxable.
D. Attendance Fees for Dr. Chad Walters and Dr. Richard Beck
Defendants argue that the $80.00 Plaintiff seeks for the “attendance” of Dr. Chad Walters
and Dr. Richard Beck is not taxable because neither Walters nor Beck attended the trial. Plaintiff
responds that “[t]hese witnesses appeared at trial via video deposition.” DN 63 at 3. Section
1821(b) states “[a] witness shall be paid an attendance fee of $40 per day for each day’s
attendance.” Although video depositions of these witnesses were played for the jury, neither
Walters nor Beck “attended” the trial within the meaning of Section 1821. Therefore, the $80.00
Plaintiff seeks for the attendance of these witnesses is not taxable.
E. Printing Fees
Defendants object to a $1,363.621 charge for printing fees. Defendants argue that Plaintiff’s
documentation was inadequate because “[r]ather than produce an itemized receipt or invoice, she
produced only a cellphone screenshot of an apparent credit card payment for $1,310.70.” DN 621 at 5. Plaintiff responds that the $1,310.70 “was an actual charge that was paid and is recoverable

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It appears that Defendants may have made a calculation error when determining the disputed printing fees.
Defendants allege Plaintiffs seek $1,362.90 for printing fees. However, the Plaintiff’s bill of costs indicate that
Plaintiff seeks $52.92 (for “fees and disbursements for printing”) and $1,310.70 (for “exemplifications and the costs
of making copies of any materials where the copies are necessarily obtained for use in the case”) making a total of
$1,363.62. The difference between these two numbers is de minimis, and the Court will make its decision based on
the amount claimed on the bill of costs itself. DN 58.

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under 28 U.S.C. § 1920(4) as they were for exemplification at trial.” DN 63 at 4. To support its
claim for the $1,310.70 charge, Plaintiff includes what appears to be a screenshot from Counselor
Kyle R. Salyer’s Citibank AAdvantage credit card account. DN 58 at 16. The screenshot
documents a $1,310.70 charge at a Louisville FedEx location on October 22, 2019. Id. Plaintiff
states the $1,310.70 was an “expense that was paid to FedEx for the blow up exhibits used at trial.”
DN 63 at 4. Plaintiff’s counsel used several demonstratives during the trial that were printed on
large foam boards. FedEx advertises on its website that its stores print “mounted posters” on foam
board backing for $129.99 per 36”x48” poster, and it is likely that the amount claimed by Plaintiff
“was an actual charge paid…for exemplification at trial.” DN 63 at 4. But just because Plaintiff
chose to use foam boards at trial does not mean those copies were “necessarily obtained” within
the meaning of 28 U.S.C. § 1920(4), particularly when the courtroom was equipped with
multimedia screens in the jury box, counsel tables, and the bench. See Smith v. Joy Techs., Inc.,
No. 11-270-ART, 2015 U.S. Dist. LEXIS 12275, at *16 (E.D. Ky. Feb. 2, 2015)(“The enlarged
demonstrative aides, while perhaps convenient for the defendant, were not reasonably necessary
in light of the available technology in the courtroom.”). Accordingly, the $1,310.70 Plaintiff
allegedly paid to print its demonstrative aids is not taxable.
Plaintiff also seeks reimbursement for $52.92 in “fees and disbursements for printing.” DN
58 at 1. Defendant argues these printing costs were not taxable because the “exemplification and/or
copies” were of “unidentified items,” counsel has not produced “an itemized receipt or invoice,”
and “Plaintiff certainly did not offer enough trial exhibits during the three-day trial to justify” the
copying fees. DN 62-1 at 5. Plaintiff does not respond with an explanation regarding the necessity
of its “fees and disbursements for printing.” Although “§ 1920 does not demand page-by-page
precision,” parties requesting reimbursement for copying costs must provide enough information

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for the Court to reasonably determine whether the copies were necessarily obtained for use in the
case. See LFP IP, LLC v. Hustler Cincinnati, Inc., No. 1:09-cv-9I3, 2016 U.S. Dist. LEXIS
165322, 2016 WL 7015764 at *15 (S.D. Ohio Nov. 30, 2016)(internal quotation marks and
citations omitted). Here, Plaintiff fails to provide any explanation or documentation that would
allow the court to evaluate their necessity. Accordingly, the $52.92 Plaintiff requests for “fees and
disbursements for printing” is not taxable.
F. Summary of nontaxable costs
Defendants’ objections will be sustained in part in accordance with the following:
Nontaxable Costs
Cost
Media Archival Fee
Video Format Conversion Fee
Expedited Processing/Delivery – Video Media
Attendance Fee – Dr. Chad Walters
Attendance Fee – Dr. Richard Beck
FedEx Payment for Demonstrative Enlargements
Fees and Disbursements for Printing
Total Requested Costs
Total Nontaxable Costs
Total Taxable Costs

Amount
$20
$52.50
$100.00
$40
$40
$1,310.70
$52.92
$5,223.74
$1,616.12
$3,607.62

Citation
DN 58 at 12
DN 58 at 12
DN 58 at 12
DN 58 at 2
DN 58 at 2
DN 58 at 16
DN 58 at 1

IV. Conclusion
Motions having been made and for the reasons set forth herein and the Court being
otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that Defendants’
motion to review Plaintiff’s bill of costs, DN 62, is GRANTED, and the Court SUSTAINS
Defendants’ objections in part and awards reduced costs against Plaintiff.

February 26, 2020

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