Roof v. Bel Brands USA, Inc. et al

Filing 82

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr. on 1/11/2018 Costs are awarded in favor of Defendant and against Plaintiff in the amount of $3,571.95; denying 72 Motion for Extension of Time to File an Appeal. cc: Counsel(JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:14CV-00071-JHM
KAREN ROOF

PLAINTIFF

VS.
BEL BRANDS USA, INC., et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a bill of costs submitted by Defendant Bel Brands USA
requesting the Court to tax costs in the amount of $4,747.45 against the Plaintiff Karen Roof [DN
71] pursuant to Federal Rule of Civil Procedure 54(d) and 28 U.S.C. ' 1920. Plaintiff filed
objections to Defendant’s bill of costs and a request for a hearing [DN 77]. The Court finds that a
hearing on the bill of costs is not necessary. Plaintiff also filed a motion for extension of time to
file an appeal until after the disposition of all post-judgment motions pursuant to Federal Rule of
Appellate Procedure 4(a)(5)(A)(i) [DN 72]. Fully briefed, these matters are ripe for decision.
I. BACKGROUND
Plaintiff filed this lawsuit in state court on June 5, 2014, alleging employment
discrimination, retaliation, and state law claims of promissory estoppel, negligent hiring, and civil
conspiracy. Defendant removed the action to this Court. The Court denied Plaintiff’s motion to
remand and granted Defendant’s motion to dismiss all the claims. Plaintiff appealed to the Sixth
Circuit who affirmed dismissal of all counts, except for her claim of sex discrimination for failure
to promote. On remand, the parties took four depositions, and thereafter, Defendant moved for
summary judgment. The Court granted Defendant’s motion for summary judgment, entered
judgment in favor of Defendant, and dismissed Plaintiff’s complaint with prejudice. Defendant

now moves for recovery of costs in the amount of $4,747.45.
II. STANDARD OF REVIEW
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. American
Hosp. Supply Corp., 786 F.2d 728, 730 (6th Cir. 1986). See Ford v. FedEx Supply Chain Servs.,
Inc., 2009 WL 1585849, *1 (W.D. Tenn. June 3, 2009) (AThere 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, *2 (W.D. Ky. Aug. 4, 2010) (citing
BDT Prods., Inc. v. Lexmark Intern., Inc., 405 F.3d 415, 420 (6th Cir. 2005), overruled on other
grounds by Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560 (2012)). 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 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.
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III. DISCUSSION
Plaintiff asks the Court to deny the bill of costs because: (A) Plaintiff acted in good faith
and with propriety during the course of the litigation; (B) the case was close and difficult; (C)
Plaintiff was a “prevailing party in litigation” when the Sixth Circuit reversed and remanded her
sex discrimination claim back to the district court; (D) awarding costs to a prevailing employer
defendant would have a chilling effect on an employee plaintiff in discrimination suits because
they would be dissuaded from seeking justice for violations of their statutory civil rights; and (E)
the bill of costs includes a number of unnecessary, unreasonable, and unsubstantiated charges.
Plaintiff cites White & White, Inc. v. American Hosp. Supply Corp., 786 F.2d 728, 730 (6th Cir.
1986), in support of her argument.
Courts have discretion to decline awarding costs when “‘it would be inequitable under all
the circumstances in the case.’” Smith v. Joy Techs., Inc., 2015 WL 428115, at *1 (E.D. Ky. Feb.
2, 2015)(quoting Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 836 (6th Cir. 2005)
(internal quotation marks omitted). “The Sixth Circuit has laid out a few situations where courts
appropriately use their discretion to refuse costs: (1) where the prevailing party’s costs are
‘unnecessary or unreasonably large’; (2) where the prevailing party has ‘unnecessarily prolong[ed]
trial’ or has ‘inject[ed] unmeritorious issues’; (3) where the prevailing party’s victory is
insignificant; and (4) in ‘close and difficult’ cases.” Smith, 2015 WL 428115, *1 (quoting White
& White, Inc., 786 F.2d at 730).
A. Good Faith
“The good faith of unsuccessful litigants is a relevant consideration in Rule 54(d)
deliberations.” White, 786 F.2d at 731 (citing Coyne-Delany Co. v. Capital Development Bd. Of
State of Ill., 717 F.2d 385, 390 (7th Cir. 1983). However, “[g]ood faith without more . . . is an
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insufficient basis for denying costs to a prevailing party.” White, 786 F.2d at 731.
B. Closeness and Difficulty of the Case
“The closeness of a case is judged not by whether one party clearly prevails over another,
but by the refinement of perception required to recognize, sift through and organize relevant
evidence, and by the difficulty of discerning the law of the case.” White, 786 F.2d at 732–33.
“Cases that courts have considered ‘close’ include those involving patent validity and complex
antitrust issues.” Smith, 2015 WL 428115, *1. For example, “the antitrust trial in White lasted 80
days, ‘required 43 witnesses, produced 800 exhibits, generated almost 15,000 pages of transcript,
and begat a 95 page opinion.’” Id. (quoting White & White, Inc., 786 F.2d at 732).
Here, the case did not reach the level of complexity involved in cases like those in patent or
antitrust litigation. The main issue in the case was whether Bel Brands USA, Inc., engaged in sex
discrimination of Karen Roof by failing to promote her. Contrary to Plaintiff’s argument, a
finding by the Court that Plaintiff established a prima facie case of sex discrimination does not
evidence the case’s complexity. Satisfying the prima facie case of a discrimination claim does
not mean the case was “close.” Neither the law nor the evidence in this case “was sufficiently
difficult to warrant the denial of costs.” Smith, 2015 WL 428115, at *3.
C. Roof as Prevailing Party
Roof maintains that she was a prevailing party in the litigation because she prevailed on her
appeal of the Rule 12(b)(6) dismissal of her sex discrimination claim. Additionally, Plaintiff
contends that she prevailed on a discovery dispute, and she may very well prevail again at the Sixth
Circuit. As a result, Plaintiff maintains that all costs should be denied.
“A party is the prevailing party where (1) it receives ‘at least some relief on the merits of
[its] claim’ and (2) there is a ‘judicially sanctioned change in the legal relationship of the parties.’”
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Vogel v. E.D. Bullard Co., 2015 WL 12977019, at *1 (E.D. Ky. Mar. 10, 2015)(quoting Maker’s
Mark Distillery, Inc. v. Diageo N. Am., Inc., 679 F.3d 410, 425 (6th Cir. 2012) (citing
Buckhannon Board and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S.
598, 603-605 (2001))). “When the results of a case are mixed, however, both parties have
‘prevailed.’” Vogel, 2015 WL 12977019, at *1 (citing Mills v. City of Barbourville, 389 F.3d
568, 581 (6th Cir. 2004) (concluding that when both plaintiff and defendants prevailed in part, the
defendants could not be considered a “prevailing party” and each party should bear its own costs);
Lynch v. Sease, 2007 WL 2844962, *2 (E.D. Ky. Sept. 28, 2007) (holding that each party would
bear its own costs and expenses when both prevailed on certain claims)).
Here, Plaintiff did not receive relief on the merits of her claims and did not achieve a
change in the legal relationship of the parties. Thus, in the present case, Defendant is the single
“prevailing party” for purposes of awarding costs.
D. Chilling Effect on Litigation
Plaintiff maintains that employers have a great incentive to erode discrimination laws.
And maneuvers such as this Bill of Costs has a chilling effect on litigation by sending a message
that no matter what discrimination one suffers in the workplace, a plaintiff will be forced to pay the
employer’s cost if he or she loses.
A review of the case law reflects that costs have long been available and awarded to
prevailing parties in employment discrimination lawsuits. “The fact that a prevailing party
prosecutes its rights under the Federal Rules of Civil Procedure to an award of costs cannot be seen
as chilling the flow of litigation.” Reger v. The Nemours Foundation, Inc., 599 F.3d 285, 289 (3d
Cir. 2010). “After all, the Rules presume that the prevailing party is entitled to costs. It is
incumbent on an attorney to explain the risks of litigation to his or her client—including the risk
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that under Rule 54(d)(1) they may have to pay costs should their litigation ultimately prove
unsuccessful.” Id. See also Frye v. Baptist Memorial Hosp., Inc., 507 Fed. Appx. 506 (6th Cir.
2012)(citing Reger with approval).
Accordingly, the Court concludes that awarding costs to Defendant would not have an
unwarranted chilling effect on future sex discrimination claims.
E. Unnecessary, Unreasonable, and Unsubstantiated Charges
Defendant represents that it incurred costs in the amount of $400 for the initial filing fee to
remove the action to this Court and $255 for pro hac vice fees for Cintra McArdle, Richard
McArdle, and Ashley Laken. Defendant incurred $4,042.45 in taxable costs in the area of court
reporter appearance fees and deposition transcript fees in connection with the depositions of Karen
Roof, Rodney Inman, Paul Meyers, and Hyrum Horn. Defendant represents that all of these
depositions were necessary and relied upon by the parties in briefing Defendant’s motion for
summary judgment. Defendant also incurred photocopying costs of $50.
Plaintiff argues that Defendant, who in 2016 estimated a consolidated net profit of $213
million, seeks recovery for a bill of costs for $4,747.45. Plaintiff maintains that Defendant has
knowingly and purposefully caused excessive and unnecessary fees in this litigation and should be
forbidden from receiving these costs. Plaintiff did not specifically object to the initial filing fee or
the photocopying costs.
1. Net Profit of Defendant
The Sixth Circuit has “identified factors that a district court should ignore when
determining whether to exercise its discretion and deny costs, including . . . the ability of the
prevailing party to pay his or her costs.” White, 786 F.2d at 730 (citing Lewis v. Dennington, 400
F.2d 806, 819 (6th Cir. 1968)). Accordingly, the Court did not consider the 2016 net profit of
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Defendant.
2. Fees for Printed or Electronically Recorded Transcripts
Defendant seeks to recover $4,042.45 as costs for fees for printed or electronically
recorded transcripts obtained for use in this case. Deposition expenses are generally taxed as
costs under '1920. Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989). However, “not all of
the costs associated with these depositions are taxable.”

Charboneau v. Severn Trent

Laboratories, Inc., 2006 WL 897131, *3 (W.D. Mich. Apr. 6, 2006). Plaintiffs object to the
requested costs on the grounds that the costs are unreasonable, unnecessary, not accurate, or
unsubstantiated.
a. Veritext Corp. Midwest Regional Invoice #CHI2936325
Plaintiff objects to the cost for videography and video services in the amount of $1,625.50
charged by Veritext Corp Midwest Regional for the deposition of Karen Roof arguing that these
services were unreasonable and unnecessary because Plaintiff would necessarily be required to be
present at the jury trial. Plaintiff also submits the affidavit of Eric Soergel, a partner at the firm of
Chuppe Soergel Abell & Arnold, a Louisville, Kentucky based court reporting company. Soergel
averred that he has been a court reporter for 34 years and is familiar with the costs of court
reporting services in the area. [DN 75-1, Soergel Affidavit]. Soergel averred that the video
deposition costs charged by Veritext to be price gauging. Soergel indicated that his firm would
have charged $425 less on the hourly fee and would not have charged a $328 set up/breakdown
fee. Accordingly, the invoice would have been $753 less than what was charged if his firm had
conducted the video deposition. Id.
Title 28 U.S.C. ' 1920 permits recovery of costs for “[f]ees for printed or electronically
recorded transcripts necessarily obtained for use in the case.” The Sixth Circuit “accords with
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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.”
Graham v. City of Hopkinsville, Ky., 2013 WL 4456685, *2 (W.D. Ky. Aug. 16, 2013); Hyland v.
HomeServices of America, Inc., 2013 WL 1904513, *3 (W.D. Ky. May 7, 2013)(citing BDT
Products, 405 F.3d at 420 (holding that “videotape depositions are taxable under ' 1920” and that
“it was proper to tax both the cost of videotaping and transcribing the deposition”)). Accordingly,
the cost of the video deposition of Roof is recoverable.
Notwithstanding, the Court finds that Plaintiff presents sufficient evidence that the hourly
fee for the cost of the video deposition was excessive, as well as the set up/break down fee. As
noted above, the party objecting to the taxation bears the burden of persuading the Court that
taxation is improper. Plaintiff offered such evidence, and Defendant did not present evidence to
the contrary. Therefore, the Court will permit costs in the amount of $872.50 for the video
deposition of Karen Roof.
b. Veritext Corp. Midwest Regional Invoice #CHI29400247
Plaintiff objects to the cost of transcript services for the deposition of Karen Roof in the
amount of $1,402.50 as being unreasonable and professional attendance in the amount of $422.50
as being unnecessary, unreasonable, and in bad faith. Court reporter Soergel represents that “the
invoice[ is] quite a bit higher than what Chuppe Soergel Abell & Arnold, LLC would have
charged.” [Id. at ¶ 5.] Court reporter Soergel also avers that the $422.50 appearance fee
(Professional Attendance) is not customary or normal. It does not appear that Plaintiff objects to
the exhibit management fee in the amount of $54.45 or shipping in the amount of $22.50.
Plaintiff fails to set forth sufficient evidence to satisfy her burden with respect to the hourly
fee for transcription services. Soergel merely represents that the invoice is quite a bit higher than

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his firm would charge. However, Plaintiff does satisfy her burden with respect to the appearance
fee, as Defendant offers no evidence to the contrary. Therefore, the Court will permit costs in the
amount of $1479.45 for the transcript services for Roof’s deposition.
c. Magna Legal Services, Invoice #333191
Plaintiff objects to the cost in the amount of $264.60 for the certified transcript of Hyrum
Horn because it was not accurate and unsubstantiated. Specifically, Plaintiff indicates that Magna
Legal Services created a terrible transcript. Plaintiff relies on the affidavit of Eric Soergel who
indicated that if a transcript is released with errors and if the errors are not subsequently corrected,
his company would not charge for the transcript. Defendant represents that Plaintiff fails to
disclose that her lawyer selected Magna Legal Services. The Court overrules Plaintiff’s objection
to the cost of this transcript. The errors noted by Plaintiff did not affect the disposition of the case.
3. Pro Hac Vice Fees
Plaintiff objects to the pro hac vice fees of three attorneys because Bel Brands had
competent counsel in Kentucky, Caroline Pieroni, and therefore it was an unnecessary expense.
Courts are split on whether a court may appropriately tax pro hac vice fees to the non-prevailing
party. Compare Kalitta Air L.L.C. v. Central Tex. Airborne Sys., Inc., 741 F.3d 955, 957–58 (9th
Cir. 2013) (per curiam) (not taxing pro hac vice fees), with Craftsmen Limousine, Inc. v. Ford
Motor Co., 579 F.3d 894, 896 (8th Cir. 2009) (taxing pro hac vice fees). The Sixth Circuit has not
clarified whether pro hac vice fees are an appropriate taxable cost under § 1920. Smith v. Joy
Techs., Inc., 2015 WL 428115, at *5 (E.D. Ky. Feb. 2, 2015).
Previously relying on Roll v. Bowling Green Metal Forming, LLC, 2010 WL 3069106, at
*2 (W.D. Ky. Aug.4, 2010), the undersigned concluded that “‘a pro hac vice filing fee is a fee
allowed under § 1920(1) and may be taxed as part of costs.’” Madison Capital Co., LLC v. S & S

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Salvage, LLC, 2011 WL 3667673, at *1 (W.D. Ky. Aug. 22, 2011)(quoting Roll, 2010 WL
3069106, *2). Further, the undersigned noted that “[a] pro hac vice fee is a fee paid to the clerk
and is, therefore, recoverable under § 1920(1).” Madison Capital Co., LLC v. S & S Salvage,
LLC, 2011 WL 3667673, at *1 (W.D. Ky. Aug. 22, 2011). But see Smith v. Joy Techs, Inc., 2015
WL 428115, at *5 (E.D. Ky. Feb. 2, 2015)(Thapar, J)(pro hac vice fees are not taxable).
Accordingly, based on the Court’s previous decisions, the Court will permit Defendant to
recover these costs.
IV. MOTION EXTENSION OF TIME
On September 26, 2017, the Court granted Defendant’s motion for summary judgment and
entered a judgment in favor of Defendant. Pursuant to Federal Rule of Appellate Procedure 4(a),
Plaintiff was required to file a notice of appeal with the district court within 30 days of September
26, 2017. FRAP 4(a)(1)(A). On October 18, 2017, Plaintiff filed this motion for extension of
time to file an appeal after all post-judgment motions have been ruled upon pursuant to Federal
Rule of Appellate Procedure 4(a)(5)(A)(i). Specifically, Plaintiff indicates that “[i]n order to
preserve all rights Roof has for a possible appeal to the Judgment, she is filing this motion for an
extension of time so the court may adjudicate the bill of costs issue before Roof is forced to decide
whether to appeal the Judgment.” (Plaintiff’s Motion [DN 72] at 2.)
An appeal “from a district court to a court of appeals may be taken only by filing a notice of
appeal with the district clerk within the time allowed by Rule 4.” Fed. R. App. P. 3(a)(1). “[T]he
notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry
of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). “‘The failure of appellant to
timely file a notice of appeal deprives an appellate court of jurisdiction.’ ” Peery v. C.I.R., 610 Fed.
Appx. 566, 567 (6th Cir. 2015) (quoting Rhoden v. Campbell, 153 F.3d 773, 774 (6th Cir. 1998));

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Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir. 1989) (citations omitted).
“The district court may extend the time to file a notice of appeal if: (i) a party so moves no
later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii) regardless of whether
its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires,
that party shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A). “‘Good cause will
be found where forces beyond the control of the [movant] prevented [the] filing of a timely notice
of appeal.’” JBlanco Enterprises v. Soprema Roofing and Waterproofing, Inc., 2017 WL 1838700,
at *1 (N.D. Ohio May 8, 2017), aff’d, 2017 WL 5634299 (6th Cir. Nov. 20, 2017)(quoting
Nicholson v. City of Warren, 467 F.3d 525, 526 (6th Cir. 2006) (citing Mirpuri v. ACT Mfg., Inc.,
212 F.3d 624, 630 (1st Cir. 2000)). “‘The excusable neglect standard applies in situations in which
there is fault; in such situations, the need for an extension is usually occasioned by something
within the control of the movant.’” JBlanco Enterprises, 2017 WL 1838700, at *1 (quoting 16A
Fed. Prac. & Proc. Juris. § 3950.3 (4th ed.) (quoting Fed. R. App. P. 4(a)(5)(A)(ii) 2002 advisory
committee’s notes)).
While Plaintiff moved for an extension of time to file the appeal within the 30 day period
for filing an appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A), the Plaintiff is still
required to demonstrate good faith or excusable neglect. The decision of whether to appeal this
matter or awaiting a decision by a court on whether to award costs are “typical of the
circumstances experienced by any litigant when considering whether to appeal . . . [and] do not
establish either ‘good cause’ or ‘excusable neglect.’” Jasnosz v. J.D. Ott Co., 2011 WL 5208367,
at *1 (W.D. Wash. Oct. 31, 2011). As a result, Plaintiff’s motion for extension of time is denied.
V. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that costs are awarded in

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favor of Defendant and against Plaintiff in the amount of $3,571.95.
IT IS FURTHER ORDERED that the motion for extension of time to file an appeal
pursuant to Federal Rule of Appellate Procedure 4(a)(5)(A)(i) [DN 72] is DENIED.

cc: counsel of record
January 11, 2018

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