SADULSKY v. TOWN OF WINSLOW et al
Filing
138
ORDER granting in part and denying in part 136 Bill of Costs (Costs Taxed in amount of $ 2686.85 against Plaintiffs) By CLERK OF COURT, Christa K. Berry. (ems)
UNITED STATES DISTRICT COURT
District of Maine
WILLIAM P. SADULSKY, et. al.,
Plaintiffs,
v.
TOWN OF WINSLOW, et al.,
Defendants.
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No. 1:14-cv-0001-JHR
ORDER ON BILL OF COSTS
Prevailing parties are entitled to move for an award of costs pursuant to
Federal Rule of Civil Procedure 54(d)(1), which provides in pertinent part that
“[u]nless a federal statute, these rules, or a court order provides otherwise, costs
...should be allowed to the prevailing party.” As determined by the Court and the
jury, Defendants are the prevailing party in this case. Judgment (ECF No. 133).
Expenses that may be taxed are specified in 28 U.S.C. § 1920, but the costs must be
“necessarily incurred in the case,” pursuant to 28 U.S.C. § 1924. Defendants seek
costs in the total amount of $4,399.69 for transcript fees, witness fees and
exemplification and copy costs. Bill of Costs, (ECF No. 136). Plaintiffs have
objected to the Bill on the basis of unreasonableness and necessity as well as the
chilling effect of awarding costs in this type of case. Plaintiff’s Objection to Bill of
Cost, (ECF No. 137). Having made an independent review of Defendants’ Bill of
Costs as well as Plaintiffs’ response in opposition, the Clerk of Court hereby taxes
against Plaintiffs the total amount of two thousand six hundred eighty-six dollars
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and eighty-five cents ($2,686.85). Certain claimed costs are hereby excluded as
explained herein.
I.
Public Interest and Cost Recovery
Plaintiffs argue that the important public interest of allowing civil suits
where there are allegations of excessive force or misuse of government power
warrants not taxing Defendants’ costs against them. Plaintiffs aver that “tag[ging]”
defense costs against meritorious plaintiffs attempting to hold public officials
accountable will chill the future prosecution of these types of cases and will harm
the public good. Id. at pp. 1-2.
The starting point for consideration is that the First Circuit has interpreted
Rule 54(d)(1) as creating a presumption that “favor[s] cost recovery for prevailing
parties.” B. Fernandez & HNOS, Inc. v. Kellogg USA, Inc., 516 F.3d 18, 28 (1st Cir.
2008); Papas v. Hanlon, 849 F.2d 702, 704 (1st Cir. 1988) (“presumption inherent in
Rule 54(d)”); See also Am. Auto. Mfrs. Ass’n v. Comm’r, Mass. Dep’t of Envtl. Prot.,
31 F.3d 18, 28 (1st Cir. 1994) (“Prevailing parties are normally entitled to costs.”);
and In re Two Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire Litig.,
994 F.2d 956, 962 (1st Cir. 1993) (“[T]his negative discretion...operates in the long
shadow of a background presumption favoring cost recovery for prevailing parties.”).
While the First Circuit permits that “a district court may…exercise its discretion to
disallow a prevailing party’s bill of costs in whole or in part,” the trial court must
“articulat[e] reasons” to do so. In re Two Appeals, 994 F. 2d at 963.
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Thus, the directive of Rule 54(d)(1) is a difficult burden to overcome, and the
Clerk is unpersuaded by Plaintiffs’ argument. The rule makes clear that, in the
ordinary course, a prevailing party is entitled to an award of costs regardless of the
type of suit. The rule’s emphasis is found in the statement “[u]nless a federal
statute, these rules or a court order provides otherwise.” Fed. R. Civ. P. 54(d)(1)
(emphasis added).
Additionally, this Court has generally disallowed the taxation of costs to a
prevailing party only in circumstances of demonstrated financial hardship. Other
courts consider scant few additional arguments. Some courts delineate that “only
misconduct by the prevailing party…or the losing party’s inability to pay will suffice
to justify denying costs.” Cherry v. Champion Intern. Corp., 186 F.3d 442, 446 (4th
Cir. 1999) quoting Congregation of The Passion, Holy Cross Province v. Touche, Ross
& Co., 854 F.2d 219, 222 (7th Cir.1988). See also In re Paoli R.R. Yard PCB
Litigation, 221 F.3d 449 (3rd Cir. 2000); Schwarz v. Folloder, 767 F.2d 125, 131 (5th
Cir.1985) [describing the denial of costs as “in the nature of a penalty” (internal
quotation marks and citation omitted)] and Serna v. Manzano, 616 F.2d 1165, 1167
(10th Cir.1980).
Plaintiffs’ good faith claim and their pursuit of important statutory rights
“does not provide a sufficient basis to avoid the presumptive taxation of costs.”
Cherry, 186 F.3d at 446. Considering the intent and basis of a suit in order to deny
the taxation of costs would frustrate the operation of Rule 54(d)(1) and would
require the Court to engage in value judgments. The express language in the first
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clause of Rule 54(d)(1) does not provide for such value judgments without express
provision by rule or statute. Fed. R. Civ. P. 54. “Rule 54(d)(1) should not be
interpreted to include a public interest exception as defined by the judiciary on a
case by case basis.” Cherry at 448.
II.
Court Reporter Fees and Deposition Costs
Transcript fees are taxable to the extent that they were “necessarily obtained
for use in the case.” 28 U.S.C. § 1920(2). In this case, Defendants have requested
fees for court reporter transcripts and exhibits related to five depositions, those of
Haley Fleming, Joshua Veilleux, Michael Michaud, William and Sandra Sadulsky
and Michael Curran. Plaintiffs have objected to the costs related to the Curran
deposition because it was expedited and costly. Based upon a review of the docket
in this case, each of the depositions was necessarily obtained in that they were
either used at trial or used and cited to in Defendants’ motion for summary
judgment. Memorandum of Law in Support of Bill of Costs, p. 3 (ECF No. 136-1).
While each of the depositions was necessarily obtained, some of the
associated costs for the depositions will not be taxed. Postage, emailing, shipping
and handling costs for the delivery of depositions are considered ordinary business
expenses that may not be charged as taxable costs in relation to obtaining
transcripts. Alexander v. CIT Technology Financing Services, Inc., 222 F. Supp. 2d
1087 (N.D. Ill. 2002); See also Maurice Mitchell Innovations, L.P. v. Intel Corp., 491
F.Supp.2d 684 (E.D. Tex. 2007) and Treaster v. HealthSouth Corp., 505 F.Supp.2d
898 (D. Kan., 2007). Thus, Defendants’ costs for deposition transcripts will be
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reduced by $50, the total amount of postage and handling fees charged for each of
the five depositions.
Plaintiffs object to the cost of the Dr. Curran deposition. They say that its
costs should not be awarded because it was produced in an expedited manner, in
part because defense counsel would not agree to a reasonable accommodation in the
trial schedule and because of the need to schedule the deposition later in the process
- right before trial - in order to accommodate schedules. Plaintiff’s Objection to Bill
of Cost, p. 3, (ECF No. 137). Defendants say the expedited transcript was necessary
because “Plaintiffs scheduled the deposition to occur four days before the first day of
trial,” and the deposition was necessary because the witness could not attend trial.
Id.
According to the documentation provided by Defendants, it appears that the
Curran transcript was produced at an expedited page rate of $4.63 per page while
the other four transcripts were produced at an average rate of $2.50 per page.
Documentation in Support of Bill of Costs, pp. 7-11 (ECF No. 136-2). The expedited
rate represents an extra cost for a transcript which “is not taxable unless prior court
approval of expedition has been obtained or the nature of the litigation necessitates
expedited receipt.” Fogleman v. ARAMCO, 920 F.2d 278 at 286 (5th Cir. 1991). See
also U.S. v. Davis, 87 F.Supp. 2d 82, 90, (D.R.I. 2000); Pan American Grain Mfg. Co.
v. Puerto Rico Ports Authority, 193 F.R.D. 26, 40 (D.P.R. 2000) (“..an expedited
transcript, without explanation…for its necessity, is a mere convenience for
counsel”); Farmer v. Arabian American Oil Co., 379 U.S. 227 (1964); Sun Ship, Inc.
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v. Lehman, 655 F.2d 1311, 1318 n.48 (D.C. Cir. 1981) (overnight transcription of
depositions disallowed when purely for convenience of counsel); and Hill v. BASF
Wyanotte Corp., 547 F. Supp. 348, 352 (E.D. Mich. 1982) (no showing of need for
expedited transcript of deposition and disallowing daily transcript due to no prior
court approval). While Defendants have attempted to explain the necessity of the
expedited rate, Plaintiffs have alleged that the rate was necessary because of
decisions of counsel or scheduling problems. Where the facts supporting necessity
in this case are debatable, the Clerk finds that the burden to demonstrate necessity
has not been met and that the “[a]dditional charges incurred merely for the
convenience of one party's counsel should not be taxed to the other.” Fogelman at
286. Therefore, because the parties agree that the Curran transcript was
necessary, Defendants’ costs for the transcript will be taxed at the reduced,
standard rate rather than the expedited rate. The Clerk will apply the standard
rate of $2.50 per page rather than expedited rate of $4.62 per page, resulting in a
total taxed cost of $161.25 for the Curran deposition ($152.50 for the transcript and
$8.75 for the copies).
Therefore, the total amount to be taxed for transcripts is $1,423.25.
III.
Fees for Witnesses
Defendants seek witness fees and disbursements related to the necessary
attendance of witnesses Haley Fleming, Joshua Veilleux and Michael Michaud, all
of whom appeared at trial. Witness List (ECF No. 127). Defendants seek (1)
mileage for Fleming’s travel to trial each day, (2) the cost of Michaud’s flight to
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Maine, and (3) reimbursement for overtime costs that were incurred by the Town of
Winslow to have officers Veilleux and Fleming present for trial. Plaintiffs object to
the overtime costs because Defendants had sufficient advance notice to have the
officers’ schedules adjusted to avoid overtime and accommodate trial. Plaintiffs also
object to the witness fees of Michaud, saying that it is “inappropriate for Defense
counsel to seek reimbursement of Mr. Michaud’s travel costs, when he was under no
legal obligation, either by the Court, Plaintiffs or Defendants, to appear.” Plaintiff’s
Objection to Bill of Cost, p. 4, (ECF No. 137).
Under 28 U.S.C. § 1920(3), certain witness fees are taxable as costs if the
witness appeared at trial, but 28 U.S.C. § 1821 limits a federal court to taxing only
those costs permitted therein. The Supreme Court has said when “a prevailing
party seeks reimbursement for fees paid to its own expert witnesses, a federal court
is bound by the limits of § 1821(b), absent contract or explicit statutory authority to
the contrary.” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 at 439 (1987).
The statute allows for reimbursement of a witness attending trial in the amount of
$40.00 per day for attendance [28 U.S.C. § 1821(b)]; reimbursement for actual
expenses of travel, utilizing the most economical rate reasonably available [28
U.S.C. § 1821(c)(1)]; and, when an overnight is required, reimbursement of a
subsistence allowance paid to the witness in an amount not to exceed the maximum
per diem allowance prescribed by the Administrator of General Services, pursuant
to §5702(a) of Title 5 [28 U.S.C. § 1821(d)(1) and (2)].
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Under this statutory rubric, the overtime costs incurred by Defendants to
have officers Fleming and Veilleux will not be taxed. In addition, travel costs for
Fleming will not be taxed because parties in interest are generally not awarded
witness fees. Bowling v. Hasbro, Inc., 582 F. Supp. 2d 192, 209 (D.R.I. 2008), Barber
v. Ruth, 7 F.3d 636, 646 (7th Cir.1993); and 10 Charles Alan Wright, Arthur R.
Miller, & Mary Kay Kane, Federal Practice and Procedure § 2678 (3d ed.1998).
Michael Michaud’s travel costs for flight and attendance fees should be
reimbursed because his testimony at trial presumes his attendance was necessary
for disposition of the case. Argument that Michaud’s attendance was voluntary is
not dispositive since his attendance was reasonably necessary and there is
authority for “the allowance of fees of witnesses who attend and testify even if not
subpoenaed.” Hansen v. Bradley, 114 F.Supp. 382, 386 (D. Md. 1953); see also
Spiritwood Grain Co. v. Northern Pac. Ry. Co., 179 F.2d 338, 344 (8th Cir. 1950);
and Stanley v. Cottrell, Inc., 784 F.3d 454, 467 (8th Cir. 2015).
Therefore, for witness fees, the Clerk will tax a total of $761.20 which
includes $160 ($40 per day times four days of trial) for Joshua Veilleux, the same
amount of daily attendance fees for Michael Michaud, and the claim of Michaud’s
flight from Minnesota to Maine at $441.20.
IV.
Fees for Copies
A prevailing party may recover costs for copies that were “necessarily
obtained for use in the case.” 28 U.S.C. § 1920(4). The costs are usually taxed if
they were “reasonably necessary to the maintenance of the action” or furnished to
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the Court and opposing counsel. Rodriguez-Garcia v. Davila, 904 F.2d 90, 100 (1st
Cir. 1990) and Simmons v. O’Malley, 235 F. Supp. 2d 442 (D. Md., 2002).
Defendants have claimed the taxation of copy costs in the total amount of $563.20
and have said that the copies were largely copies of their exhibits. Memorandum of
Law in Support of Bill of Costs, p. 4 (ECF No. 136-1). Plaintiffs object by saying
that, since no outside service was used by the Town of Winslow, the cost of the
copies could be inflated and that the claim is overreaching. For example, Plaintiffs
note that they provided a copy of their exhibits for Defendants to use at trial even
though Defendants now claim that they had to make a copy of the exhibits for use.
Plaintiffs request that the copy costs be reduced by half to be a more realistic
necessary expense.
Based on the documentation presented and the fact that most copies were
reasonably necessary for trial, the Clerk finds no reason to doubt the validity of
Defendants’ claim but for the $60.80 objected to by the Plaintiffs as duplicative trial
exhibits. “While a page-by-page justification is not required, the prevailing party
must offer some evidence of necessity,” and Defendants otherwise have done so in
this case. Bowling v. Hasbro, Inc., 582 F.Supp.2d 192, 210 (D.R.I. 2008) (internal
quotations and citations omitted). See also In re Motor Freight Express, 80 Bankr.
44 (Bankr. E.D.Pa. 1987) quoted in In re San Juan Dupont Plaza Hotel Fire
Litigation, 111 F.3d 220, 237 (1st Cir.1997).
Therefore, the Clerk will tax copy costs in the total amount of $502.40.
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ORDER
Based on the preceding findings, the Clerk of Court hereby taxes costs in
favor of Defendants in the amount of two thousand six hundred eighty-six dollars
and eighty-five cents ($2,686.85).
IT IS SO ORDERED.
/s/ Christa K. Berry
Clerk, U.S. District Court
Dated this 27th day of May, 2016
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