CLUKEY et al v. TOWN OF CAMDEN

Filing 139

ORDER granting in part and denying in part 134 Bill of Costs (Costs Taxed in amount of $ 1,140.95 against Plaintiff) By CLERK OF COURT, Christa K. Berry. (ems)

UNITED STATES DISTRICT COURT
District of Maine
ALAN CLUKEY,
Plaintiff,
v.
TOWN OF CAMDEN,
Defendants.

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No. 2:11-cv-00372-GZS

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: “[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, Defendant is the
prevailing party in this case. Judgment, ECF No. 133. Those 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. Defendant seeks costs in the total
amount of $1,404.15 for transcript fees, printing costs and conference call costs. Bill
of Costs, ECF No. 134. Plaintiff has objected to all claimed charges. Response to Bill
of Costs, ECF No. 136. Having made an independent review of Defendant’s Bill of
Costs as well as Plaintiff’s response in opposition, the Clerk of Court hereby taxes
against Plaintiff the total amount of one thousand one hundred forty dollars and
ninety-five cents ($1,140.95). Certain claimed costs are hereby excluded as
explained herein.
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Deposition Costs
Defendant seeks reimbursement for transcript fees in the total amount of
$1,011.75. Transcript costs and deposition expenses are taxable to the extent that
they were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). See
Templeman v. Chris Craft Corp., 770 F.2d 245, 249 (1st Cir. 1985) citing SCA
Services, Inc. v. Lucky Stores, 599 F.2d 178, 181 (7th Cir. 1979). In this case,
Defendants have requested fees for five depositions: those of Randy Gagne, William
Kelly, Roberta Smith, Alan Clukey and Patricia Finnegan. Plaintiff has objected to
the costs related to these depositions because Plaintiff noticed and took some of the
depositions originally (costs claimed are for Defendant’s copies), because some
deponents did not testify at trial, because some deponents were witnesses but not
impeached or used by Defendant, and because Gagne’s original deposition was paid
for by Plaintiff. Response to Bill of Costs, ECF No. 136, pp 1-2.
With the exception of the William Kelly transcript, the depositions claimed by
Defendant were party witnesses or witnesses who appeared at trial. Therefore,
Plaintiff’s objections do not warrant denial of the transcript fees claimed excepting
the Kelly transcript. As noted by the Templeman court, “[w]hile some cases hold
that costs of depositions are taxable only if they were either introducted in evidence
or used at trial, other cases allow the recovery of such costs if the taking of the
depostions is shown to have been reasonably necessary… at the time it was taken.”
Templeman at 249. Based upon a review of the docket in this case, the Gagne
transcript was necessary for motion work and was admitted at trial, so that

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transcript is clearly taxable. Id. (“if depositions are either introduced in evidence or
used at trail, their costs should be taxable”) While Defendant did not file a
memorandum in support of its Bill of Costs, the Clukey, Finnegan and Smith
depositions appear to have been necessarily obtained for use in this case because
each of the deponents either appeared at trial or were a significant party
representative in the matter. Under such circumstances, the costs of such
depositions are reimburseable, regardless of their use at trial, where Defendant
could reasonably have expected to use them at trial or in trial preparation.
Fogleman v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991) and M.T. Bonk Co. v.
Milton Bradley Co., 945 F.2d 1404, 1410 (7th Cir. 1991). The Kelly transcript,
however, will not be taxed because its necessity is unclear. Kelly did not testify at
trial; the Kelly transcript is not clearly referenced in any motion or summary
judgment work in the case; and Defendant has not provided explanatory or
supportive information about its use. Where Defendant has not provided an invoice
that explains how many pages the Kelly transcript was, the Clerk will reduce the
claim by $100, an approximate pro-rated share of the invoice that charges
transcript fees for three of the transcripts (Gagne, Kelly and Smith). See ECF No.
134-1, p. 1.
For the four depositions that were necessarily obtained and will be taxed,
some of the associated costs for those depositions will not be taxed. It appears that
the reporting service that provided the transcripts charged a total of $30 for
shipping and handling. Bill of Costs, ECF No. 134-1, pp. 1-2. Costs for shipping

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and handling 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) and
Smith v Tenet Healthsystem SL, Inc., 436 F.3d 879, 889 (8th Cir. 2006). 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).
Therefore, Defendant’s claimed costs for transcripts will be reduced by $130 for the
disallowed Kelly transcript and shipping and handling charges associated with the
depositions.
Printing Costs
Defendant has claimed $93.50 in printing costs and submitted verifying
invoices for the expenses. Bill of Costs, ECF No. 134-1, pp. 3-4. Defendant has not
submitted an explanatory affidavit or memorandum in support of its Bill of Cost,
but the printing costs appear to be for documentary evidence received from the
Maine Department of Labor and from the Social Security Administration (SSA).
Plaintiff has objected to the costs in total, saying that the Maine Department of
Labor invoice claims $10 for a research fee, which should be untaxable, and that the
SSA invoice does not break down whether the $82 is for either research or copy
costs or both. Response to Bill of Costs, ECF No. 136, p. 2. Plaintiff asserts that the
documents were not used as exhibits to the Clukey deposition and therefore should
not be allowed. Id.

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A prevailing party is entitled to recover printing costs as long as they were
“necessarily obtained for use in the case” and were “reasonably necessary to the
maintenance of the action” or furnished to 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). “While a page-by-page justification is
not required, the prevailing party must offer some evidence of necessity.” 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).
In this case, it appears that a Social Security document was submitted as
evidence at trial. See Exhibit List, ECF No. 129. It is unclear, however, if the filed
SSA exhibit was the one researched and copied for Defendant as reflected in the
SSA invoice. As for the Maine Department of Labor’s 10-page document, no
explanation of necessity is offered. The SSA invoice is unclear whether it was
produced for copies or other “services.” Bill of Cost, ECF No. 134-1, p. 4. As
Plaintiff infers without reference to case law, courts generally allow taxation of only
the production costs of printing but not for research or “intellectual effort” involved
in producing the evidence. Romero v. City of Pomona, 883 F.2d 1418, 1427-1428 (9th
Cir. 1989). It is worth noting that not all photocopying costs are subject to taxation.
For example, under subsection (4) of 28 U.S.C. § 1920, prevailing parties may not
recover the photocopy expenses that they incurred in copying documents to be

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produced in discovery. Sphere Drake Uns. PLC v. Trisko, 66 F.Supp.2d 1088, 1093
(D.Minn.,1999). Also, for an award of copy costs or exemplification, a prevailing
party should separate out necessary photocopying from photocopying done for the
convenience of the attorneys or photocopying for issues upon which the prevailing
party has not prevailed. See Virginia Panel Corp v. Mac Panel Co., 887 F. Supp
880, (W.D. Va. 1995). Since no explicit explanation has been offered by Defendant
as to why the printing costs were necessary in this case, the Clerk will not tax these
costs.
Witness Fees
Defendant attempts to tax travel expenses for trial witnesses Roberta Smith,
John French and Sharon Gilbert. Bill of Costs, ECF No. 134, p 2. Plaintiff objects
by saying that the claimed travel fees are insufficiently substantiated by the
documentation submitted and that the travel of French and Gilbert should be
considered untaxable because they are members of the Town of Camden’s Board of
Selectmen and should be treated as parties in interest. Response to Bill of Costs,
ECF No. 136, p. 4.
First, the Clerk finds that the documentation submitted is sufficient to
validate an itemization for a claim of costs. The documents provided refer to checks
issued and give amounts paid to witnesses for travel mileage in line with what is
permitted under 28 U.S.C. § 1920 and the § 1820 fee schedules. Second, it is true
that parties are generally not awarded witness fees under 28 U.S.C. § 1920(3) if
they are considered parties in interest. Barber v. Ruth, 7 F.3d 636, 646 (7th
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Cir.1993); 10 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal
Practice and Procedure § 2678 (3d ed.1998); and Haroco, Inc. v. Am. Nat. Bank &
Trust Co. of Chicago, 38 F.3d 1429, 1442 (7th Cir.1994). Here, two of the witnesses
claimed are selectmen who represent the Town of Camden, but the Clerk is
reluctant to find them such parties in interest that they should be considered “the
physical manifestation of the Town,” as Plaintiff asserts. Response, p. 4. The issue
is whether or not the witnesses are parties in interest such that they should not be
awarded witness fees. While there is a nominal connection between the selectmen
and the Town, they are no more beneficiaries of the outcome of the litigation nor
more parties in interest than any other taxpayer in the Town of Camden. As the
Barber court noted, “the question of whether a witness is a real party in interest,
and therefore ineligible to receive witness fees, is one of degree.” Barber at 646.
There is no assertion that French and Gilbert attended the trial to both manage the
trial litigation and serve as a witness. There is no assertion that they had a
significant legal interest in the case beyond working for the Town. Under these
circumstances, the witness fees for Smith, French and Gilbert will be allowed and
taxed against the Plaintiff.
Conference Call Costs
Defendant seeks to tax against Plaintiff $39.70 in costs for a conference call
made between the parties and the Court. The Clerk will not tax this cost because it
is not specifically authorized by statute. Not all expenses borne by a prevailing
party may be sought to be taxed against the losing party. The term “costs” within
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the meaning of Federal Rule of Civil Procedure 54(d)(1) is a term defined by the
comprehensive list of such costs allowed by 28 U.S.C. § 1920. The Court is limited
by that statute and may only award those costs explicitly authorized by it.
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-445 (1987). Where
conference call costs are not enumerated in § 1920, they will not be taxed.
ORDER
The Clerk of Court hereby taxes costs in favor of Defendant in the total
amount of one thousand one hundred forty dollars and ninety-five cents ($1,140.95).
IT IS SO ORDERED.
/s/ Christa K. Berry
Clerk, U.S. District Court
Dated this 6th day of January, 2017

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