LONG v. ABBOTT et al

Filing 105

ORDER granting in part and denying in part 101 Bill of Costs (Costs Taxed in amount of $ 1408.20 against Plaintiff) By CLERK OF COURT, Christa K. Berry. (ems)

UNITED STATES DISTRICT COURT
District of Maine
ARTHUR J. LONG
Plaintiff,
v.
OFC. BRENT ABBOTT, et al.,
Defendants.

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No. 2:15-cv-00291-JAW

ORDER ON BILL OF COSTS

On May 31, 2017, a federal jury issued a verdict in favor of Defendants and
against Plaintiff. Jury Verdict, ECF No. 97. As the prevailing parties in this case,
Defendants 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.” Defendants seek costs in the total amount of $1,501.70 for
transcript fees only. Bill of Costs, ECF No. 101. The First Circuit has interpreted
Rule 54(d) as creating a presumption in favor of taxation of costs for the prevailing
party. Papas v. Hanlon, 849 F.2d 702, 704 (1st Cir. 1988). The expenses that may
be taxed are delineated in 28 U.S.C. § 1920, but the costs must be “necessarily
incurred in the case,” pursuant to 28 U.S.C. § 1924.
Plaintiff has objected to Defendants’ Bill of Costs in its entirety, specifically
arguing (1) that the Court should deny the bill in its entirety so as not to chill the
rights of aggrieved citizens such as Mr. Long, and (2) that the only taxable
depositions are those used in the case, those of Abbott and Long. Plaintiff also
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noted that the Robert Booth deposition claimed by Defendants was the subject of a
motion in limine to exclude which the Court ultimately granted. See Amended
Motion in Limine to Exclude Booth Testimony, ECF No. 50, and Order, ECF No. 92.
Having made an independent review of Defendants’ Bill of Costs, the Clerk of
Court hereby taxes against Plaintiff the total amount of one thousand four hundred
eight dollars and twenty cents ($1,408.20).
Public Policy Considerations
Plaintiff urges the Court to deny the Bill of Costs in its entirety in order to
avoid chilling the rights of aggrieved citizens like Long. Some courts have noted
that “where the issues are fairly disputed, it is important that the plaintiff not be
‘unduly intimidated’ by the threat of imposition of costs.” Mulvihill v. Spalding
Worldwide Sports, Inc. 239 F.Supp.2d 121, 122 (D. Mass. 2002) citing Coulter v.
Newmont Gold Co., 873 F.Supp. 394 (D. Nev. 1994). While there is no clear test or
set of criteria outlined in caselaw to apply to this case, courts have considered some
equitable bases such as the economic disparity of parties and the limited resources
of the losing party among other factors. Mulvihill at 121; Coulter at 397; and Moore
v. Hughes Helicopters Inc., 708 F.2d 475, 486 (9th Cir. 1983). Plaintiffs who object to
the payment of costs to the prevailing party must bear the burden of proving
circumstances to overcome the Rule 54(d) presumption in favor of an award. Cooley
v. Lincoln Electric Co., 776 F.Supp.2d 511 (N.D. Ohio 2011) Given the relatively
small amount of costs claimed in this case, the Clerk believes plaintiffs in cases of
this import will not be discouraged or chilled by the imposition of costs. Therefore,

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where there is a lack of any significant proof by Plaintiff as to the impropriety of the
award, the Bill of Costs will be granted with the exception of those claimed costs
hereby excluded as explained below.
Transcript Costs
Defendants claim deposition transcript costs in the amount of $1,501.70 for
five witnesses (Booth, Long, Abbott, Malloch and Sauschuck) as well as the
videotaped deposition of one of the five witnesses, Robert Booth. A review of the
docket shows that the transcripts of Long, Abbott, Malloch and Sauschuck were
necessarily obtained for use in the case in that they were used in Defendants’
motion for summary judgment work and the Plaintiff’s response to that Motion.
See ECF Nos. 30-35. Additionally, some of the transcripts were cited by the Court
in its Summary Judgment Order, ECF No. 42. Deposition copies that are used by a
prevailing party in its preparation of summary judgment motion or upon which the
Court relied in its order regarding summary judgment are taxable. Willbanks v.
Woodrow, 65 F.3d 179, (Table) 1995 WL 519157 (10th Cir. 1995), citing Gibson v.
Greater Park City Co., 818 F.2d 722, 725 (10th Cir. 1987). Therefore, allowable
deposition transcript costs for Long, Abbott, Malloch and Sauschuck will be taxed.
Remaining at issue then are the Robert Booth transcript and the related
videotaped deposition. Defendants have claimed both $275 in costs for the
deposition transcript of Robert Booth and $416.50 for the videotaped deposition of
the same. Plaintiff noted in his objection to the Bill of Costs that, in the course of
litigation, he objected to the taking of Booth’s deposition and also filed two motions

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in limine to exclude the Booth testimony from trial. Plaintiff’s Objection to
Defendant’s Bill of Costs, ECF No. 103. Defendants sought to introduce the video
testimony of Robert Booth over Plaintiff’s objection because Defendants believed
that Booth’s testimony – and his 911 call – would provide relevant background
evidence and impeachment testimony. After reserving ruling on Plaintiff’s motions
in limine prior to trial, the Court ultimately granted Plaintiff’s motion to exclude
the testimony. Order, ECF No. 87 and Oral Order, ECF No. 92. The Court’s order
reserving ruling expressed its doubts about the admissibility and the probative
value of Booth’s testimony, but the Court did not make that finding until hearing
trial testimony. Order, ECF No. 87.
Because 28 U.S.C. § 1920(2) provides for the reimbursement of depositional
fees “necessarily obtained for use in the case,” Plaintiff has the right to resist the
cost assessment by attempting to demonstrate that the Booth deposition was
unnecessary, but there is insufficient proof of that in this case. The fact that a
particular deposition was not used at trial does bar an award of costs, as the
deposition could have been used for pretrial proceedings and it was expected to be
used at trial. See In re Baby Food Antitrust Litigation, 166 F.3d 112, 138-139 (3rd
Cir. 1999) and Westwind Africa Line v. Corpus Christi Marine Services 834 F.2d
1232, 1238 (5th Cir. 1988) (no abuse of discretion where court taxed deposition that
Westwind expected to be admitted at trial). Further, costs of depositions are
taxable if, at the time they are taken, they appeared reasonably necessary to be
taken. Fogelman v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991). Where, in this

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case, the Booth testimony was planned to be admitted at trial but for the
evidentiary and probative issues that were litigated, and where the Court
considered the testimony’s usefulness up to and including trial, the costs of the
Booth videotaped deposition and transcript will be taxed against Plaintiff. While
both videotaped and stenographic depositions may not ordinarily be found to be
“necessary for use in the case,” the record reflects that the Court granted
permission for the videotaped deposition in this case1. Third Motion in Limine,
ECF No. 83, p. 1.
Transcript Delivery Costs
Postage, shipping and handling costs for 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). Additional charges for word indices and photocopies that were
incurred for the convenience of counsel are also not allowed. Burton v. R.J.
Reynolds Tobacco, Co., 395 F.Supp.2d 1065 (D. Kan. 2005). Therefore, Defendants’
claimed costs for transcripts will be reduced by a total of $93.50 for the disallowed

1

 Absent the Court’s permission, the language of 28 U.S.C. § 1920(2) would focus the Court’s discretionary taxation 
power on how the video transcript was used, i.e. whether it had a legitimate use independent from or in addition 
to the stenographic version.  Cf. Mereidith v. Schreiner Transport, Inc., 814 F. Supp. 1004 (D. Kan. 1993).  See also 
Kalman v. Berlyn Corp., 1989 WL 112818  at 2 (D. Mass. 1989) [saying “it is one thing to tax the cost of a deposition 
which might not be used at trial, it is another thing to tax the cost of both a deposition and a videotaping.” 
(emphasis in original)]. 

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fees for shipping, handling, word indices and photocopies associated with the
depositions.
ORDER
The Clerk of Court hereby taxes costs in favor of Defendants in the amount of
one thousand four hundred eight dollars and twenty cents ($1,408.20).
IT IS SO ORDERED.
/s/ Christa K. Berry
Clerk, U.S. District Court
Dated this 7th day of July, 2017

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