Young v. United Parcel Service of America, Inc. et al
Filing
136
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 3/4/14. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
PEGGY YOUNG
:
v.
:
Civil Action No. DKC 08-2586
:
UNITED PARCEL SERVICE, INC.
:
MEMORANDUM OPINION
Presently pending and ready for resolution is a motion for
review of the clerk’s order of taxation filed by Plaintiff Peggy
Young.
(ECF No. 134).1
The relevant issues have been briefed
and the court now rules pursuant to Local Rule 105.6, no hearing
being deemed necessary.
For the reasons that follow, the motion
will be denied.
I.
Background
On February 14, 2011, summary judgment was granted in favor
of Defendant United Parcel Service, Inc., and against Plaintiff
Peggy Young.
Plaintiff appealed to the United States Court of
Appeals for the Fourth Circuit, which affirmed.
1
See Young v.
A petition for writ of certiorari is pending before the
United States Supreme Court, No. 12-1226. It was filed on April
8, 2013, and the Court invited the Solicitor General to file a
brief expressing the views of the United States on October 7,
2013.
That brief has not yet been filed.
In part because of
the reporting requirements in 28 U.S.C. § 476, the court
declines to wait any longer for resolution of the Supreme Court
petition.
Plaintiff is free to request a stay of execution
pursuant to 28 U.S.C. § 2101(f). (See ECF No. 130).
United
Parcel
Service,
Inc.,
707
F.3d
437
(4th
Cir.
2013).
Shortly after the appellate mandate issued, Defendant filed a
renewed bill of costs, along with a supporting memorandum and
exhibits,
seeking
consisting
of
taxation
$7,482.95
$83.60 for copying costs.
in
for
the
amount
deposition
(ECF No. 126).2
of
$7,566.55,
transcript
fees
and
Plaintiff opposed the
bill of costs, arguing that the deposition transcript fees were
not “necessarily obtained for use in the case,” as required by
28 U.S.C. § 1920(2).
(ECF No. 131, at 1).
The clerk disagreed
and entered an order taxing costs in favor of Defendant in the
full amount requested.
(ECF No. 134).
On June 10, 2013, Plaintiff timely filed the pending motion
for review of the bill of costs taxed by the clerk.
(ECF No.
134).
(ECF No.
Defendant filed opposition papers on June 13.
135).
II.
Plaintiff did not file a reply.
Standard of Review
Pursuant to Federal Rule of Civil Procedure 54(d)(1), a
district
court
may
conduct
a
de
novo
review
of
the
clerk’s
taxation of costs if a motion is served within seven days of the
clerk’s order.
See Fells v. Virginia Dept. of Transp., 605
F.Supp.2d 740, 742 (E.D.Va. 2009).
The same rule gives rise to
a presumption that the prevailing party in litigation will be
2
The clerk denied Defendant’s initial bill of costs without
prejudice to renewal following issuance of the appellate
mandate. (ECF No. 123).
2
awarded costs, and district courts have limited discretion to
deny them:
“[O]nly misconduct by the prevailing party
worthy of a penalty . . . or the losing
party’s inability to pay will suffice to
justify denying costs.” Congregation of The
Passion, Holy Cross Province v. Touche, Ross
& Co., 854 F.2d 219, 222 (7th Cir. 1988)
(citations omitted); see also 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)); Serna v.
Manzano, 616 F.2d 1165, 1167 (10th Cir.
1980) (same). We have recognized additional
factors to justify denying an award of
costs, such as their excessiveness in a
particular case, the limited value of the
prevailing party’s victory, or the closeness
and difficulty of the issues decided. See
Teague [v. Bakker], 35 F.3d [978, 996 (4th
Cir. 1994)]. Although the losing party’s
good faith in pursuing an action is a
“virtual prerequisite” to receiving relief
from the normal operation of Rule 54(d)(1),
that party’s good faith, standing alone, is
an insufficient basis for refusing to assess
costs against that party.
Cherry v. Champion Int’l Corp., 186 F.3d 442, 446 (4th
1999).
Cir.
Where, as here, the requested costs are permitted under
28 U.S.C. § 1920, the challenging party bears the burden of
“show[ing] the impropriety of taxing [] costs.”
Fells, 605
F.Supp.2d at 742 (citing Cofield v. Crumpler, 179 F.R.D. 510,
514 (E.D.Va. 1998)).
3
III. Analysis
Plaintiff
primarily
challenges
the
taxation
of
costs
related to “15 deposition transcripts – [i.e.,] transcripts of
two
depositions
depositions.”
of
[Plaintiff],
and
(ECF No. 131, at 1).
transcripts
of
13
other
Deposition transcripts are
generally taxable pursuant to 28 U.S.C. § 1920(2), which states,
“[a] judge or clerk of any court of the United States may tax as
costs
.
.
transcripts
.
[f]ees
for
necessarily
printed
obtained
or
for
electronically
use
in
the
recorded
case[.]”
Plaintiff cites LaVay Corp. v. Dominion Federal Savings & Loan
Ass’n, 830 F.2d 522, 528 (4th Cir. 1987), for the proposition
that “[a] district court should award costs when the taking of a
deposition is reasonably necessary at the time of its taking.”
According to Plaintiff, Defendant’s bill of costs is “improper
under that standard” for a number of reasons.
(ECF No. 131, at
1).
A.
Sharing Transcripts
Plaintiff purports to attach to her motion, but does not,
an email sent by her counsel to defense counsel on or about May
31, 2010, proposing to share copies of a number of deposition
transcripts “[i]n an effort to reduce litigation costs[.]”
at 2).
(Id.
She asserts that Defendant did not respond to this
proposal, which “would have resulted in [Defendant] receiving
without any cost seven of the transcripts for which it now seeks
4
reimbursement,” and argues that she “should not now be required
to mitigate the expense that UPS incurred as the result of its
own unwillingness to cooperate.”
(Id.).
As support for this argument, Plaintiff cites unpublished
decisions
of
the
Fourth
Circuit,
N.L.R.B.
v.
Communication
Workers of America, AFL-CIO, 818 F.2d 29, 1987 WL 37765 (4th Cir.
1987), and Tenth Circuit, United Transp. Union Local 1745 v.
City of Albuquerque, 352 Fed.Appx. 227, 231 (10th Cir. 2009).
Neither case supports her position.
In Communication Workers, 1987 WL 37765, at *2, the court
upheld a decision of the National Labor Relations Board finding
that a union’s refusal to participate in cost-sharing related to
transcript preparation constituted an unfair labor practice, but
that
decision
was
based
on
“implied
collective bargaining agreement.”
terms
Id.
in
the
parties’
More specifically, the
court explained, “[the union’s] consistent participation in the
process
of
preparation,
use
and
cost-sharing
of
arbitration
transcripts over more than thirty years implies its assent to
that
process
as
a
component
of[]
the
collective
bargaining
agreement’s express requirement that the parties share the cost
of
arbitration
proceedings.”
Thus,
the
union’s
“unilateral
departure from those procedures while the agreement was in force
constituted an unfair labor practice.”
agreement is presented here.
5
Id.
No such implied
The facts presented in City of Albuquerque are also readily
distinguishable.
There, a dispute over payment for a hearing
transcript arose when the defendant ordered and received the
transcript from a court reporter and the plaintiffs obtained a
free
copy
through
a
public
information
request.
When
the
defendant complained, the district court ordered the plaintiffs
to pay the court reporter for the transcript.
The Tenth Circuit
reversed, finding “no authority to justify requiring plaintiffs
. . . to pay a fee to a court reporter for a transcript copy the
reporter did not make, but, rather, that they legally obtained
from another source by independent means.”
352 Fed.Appx. at 230.
that
transcripts
City of Albuquerque,
The court cited “a line of cases holding
independently
accessed
(such
as
by
simply
requesting the case file from the court clerk) may be viewed and
copied as an alternative to purchasing a copy from the court
reporter.”
that
Id. at 231.
parties
without
might
paying
While this case supports the notion
lawfully
additional
be
able
court
to
access
reporter
transcripts
fees
in
some
circumstances, it does not support Plaintiff’s position that she
is, in essence, entitled to an offset due to Defendant’s refusal
to share.
Defendant points out that court reporters are entitled to
fees
for
Judicial
recording
Conference
and
transcribing
policy
accommodates
6
depositions.
such
an
Indeed,
interest
in
transcripts
of
court
proceedings
filed
with
the
court
by
limiting the right to obtain a copy for the first ninety-day
period.
See Guide to Judiciary Policy, Chapter 5: Transcripts §
560.60.
The parties have not provided information about any
contractual obligation to pay the court reporter for copies, or
any
contractual
limitation
on
making
copies
for
each
other.
Nevertheless, it is typical that the court reporter be paid by
each party receiving a copy of a transcript.
Certainly, as
Defendant argues, “there is no legal authority for a court to
require
parties
to
cooperate
in
this
manner.”
Plaintiff
counters that “UPS cites no authority holding that parties may
not choose to cooperate in this manner.”
Defendant,
however,
will
not
be
(ECF No. 134, at 2-3).
penalized
for
declining
Plaintiff’s request.
Rule 54(d)(1) “creates a presumption that costs are to be
awarded to the prevailing party,” and it is Plaintiff’s burden
to “overcome [that] presumption” by showing that “there would be
an element of injustice in a presumptive cost award.”
186 F.3d at 446.
Cherry,
There is no inherent injustice in Defendant’s
decision not to share deposition transcripts with Plaintiff – to
the contrary, it is the norm that both parties pay the costs
associated
with
deposition
transcripts
they
“reasonably necessary” to prove their case.
F.2d at 528.
believe
to
be
LaVay Corp., 830
Indeed, “[t]he general rule, established expressly
7
by the Federal Rules of Civil Procedure, is that a party must
obtain copies of deposition transcripts directly from the court
reporter upon the payment of a reasonable charge, and not from
opposing counsel or the court.”
Schroer v. United States, 250
F.R.D. 531, 537 (D.Colo. 2008).
Plaintiff has not shown that
Defendant’s adherence to this general rule justifies an offset
in taxable costs.
B.
Length of Deposition
Plaintiff next asserts, in purely conclusory fashion, that
Defendant “induced [her] to agree to have her deposition extend
to as long as 10 hours . . . [and] then insisted on using almost
a full 10 hours solely for its direct examination.”
(ECF No.
134,
is
at
3).
On
that
basis,
she
contends,
“[i]t
most
inappropriate that UPS asks the Court to punish Plaintiff for
her
accommodation
transcript.”
by
making
her
pay
for
its
unduly
lengthy
(Id.).
The record reflects that the parties stipulated that “no
single deposition [would] exceed ten (10) hours” (ECF No. 13 ¶
2), and Plaintiff does not challenge Defendant’s assertion that
her own counsel conducted at least one deposition lasting that
long.
Insofar
as
Plaintiff
argues
that
her
deposition
was
unnecessarily extended by Defendant, she offers no evidence in
support, and her opinion, by itself, is insufficient to carry
her burden on the instant motion.
8
C.
Deposition of Defendant’s Employees
Plaintiff further asserts that thirteen deponents were UPS
employees
and
[employees]
them.”
that
all
it
Defendant
wanted,
“could
without
(ECF No. 134, at 3).
talk
the
to
the
of
expense
thirteen
deposing
Thus, according to Plaintiff,
Defendant’s deposition of these witnesses “was a luxury” that
she “should not have to subsidize.”
(Id.).
Defendant attaches
notices of depositions to demonstrate that “it was [Plaintiff],
not UPS, who actually deposed ten of the thirteen deponents.”
(ECF No. 135, at 9; ECF No. 135-1).
As to the other three
deponents, Defendant asserts that they were no longer employed
by UPS at the time of their depositions; thus, Defendant “had no
control over them.”
challenged
these
rebuttal.
(ECF No. 135, at 10).
assertions
or
Plaintiff has not
presented
any
evidence
in
Accordingly, she has failed to meet her burden with
respect to this argument.
D.
Compelled Deposition
Next, Plaintiff argues that Defendant “refused” her request
to interview four witnesses informally, thereby unnecessarily
compelling her to conduct depositions.
There
appears
deponents
was
to
a
be
UPS
Plaintiff’s
counsel
would
been
have
no
dispute,
(ECF No. 134, at 3).
however,
supervisor,
as
to
outside
the
presence
improper,
and
that
9
the
that
one
whom
contact
of
defense
other
of
those
with
counsel
three
were
bargaining unit employees over whom Defendant had no control.
Plaintiff’s argument that it would be “most unjust” for taxation
of
costs
associated
unpersuasive.
E.
with
these
transcripts
is,
therefore,
(ECF No. 134, at 4).
Unnecessary Transcripts
According
depositions
to
of
Plaintiff,
three
Defendant
deponents
in
did
its
not
motion
utilize
for
the
summary
judgment; thus, it “did not need the transcripts” and she should
not be taxed for their cost.
(Id. (emphasis in original)).
While there is case law supporting that depositions not used at
trial or to support a dispositive motion are not recoverable,
see Wyne v. Medo Indus., Inc., 329 F.Supp.2d 584, 589 (D.Md.
2004), the “Fourth Circuit has not made the use of a transcript
in
a
dispositive
taxable,”
Schwarz
motion
&
the
Schwarz
test
of
of
whether
Virginia,
the
LLC
costs
v.
are
Certain
Underwriters at Lloyd’s, No. 6:07-cv-00042, 2010 WL 452743, at
*6 (W.D.Va. 2010) (quoting Ferris v. AAF-McQuay, Inc., No. 5:06cv-00082, 2008 WL 495656, at *1 (W.D.Va. Feb. 21, 2008)); see
also Levy v. City of New Carrolton, Civ. No. DKC 06-2598, 2012
WL 909215, at *2 (D.Md. Mar. 15, 2012) (“It is not necessarily
fatal to taxation that the depositions were not introduced or
otherwise used”).
Plaintiff does not challenge Defendant’s assertion that it
was she who deposed the three witnesses in question and that two
10
of them were Defendant’s Rule 30(b)(6) designees.
court’s
Guidelines
transcript
cost,
necessarily
for
Bills
including
obtained
for
of
Costs,
copies
use
of
in
Costs
§
II(D)(1)
citations omitted).
(3d
Ed.
June
be
taxable,
transcripts,
the
necessary at the time of its taking.”
of
“[t]o
Under the
case
and
must
a
be
reasonably
See Guidelines for Bills
2013)
(internal
marks
and
Included in the list of “most commonly
taxable court reporter fees” is a “[t]ranscript of deposition of
a party to the case” and the “cost of copies of transcripts of
an opposing party’s noticed depositions.”
Id. at §§ II(D)(1)(c)
and (k).
Despite the fact that this testimony may not have been
utilized
by
Plaintiff
Defendant
has
not
in
shown
its
that
motion
the
cost
for
summary
for
copies
judgment,
of
these
transcripts was not reasonably necessary at the time it was
incurred.
F.
Ability to Pay
Finally, Defendant contends that she is “unable to pay even
all of her own costs incurred in this litigation, much less
UPS’s costs,” and that it would be inequitable to tax costs
against
her
billion[.]”
considering
that
Defendant
(ECF No. 134, at 5).
“has
assets
of
$38
In support of her opposition
to the renewed bill of costs, Plaintiff submitted a declaration
setting forth her income and monthly expenses (ECF No. 131-1),
upon which she relies in the instant motion.
11
Having commenced and vigorously prosecuted this action, in
this
court
and
others,
over
the
course
of
several
years,
Plaintiff’s claims that she is now unable to pay the bills she
voluntarily incurred is not particularly compelling.
Although
her declaration demonstrates that she has significant monthly
financial obligations, it also shows that she earns a monthly
net income in excess of $3,000 and that she has assets capable
of liquidation, if necessary.
Thus, it is not the case that
Plaintiff is unable to pay the taxable costs; rather, it is
simply
burden.
that
requiring
her
to
pay
would
pose
a
substantial
The risk of that burden, however, is one that Plaintiff
freely assumed and that she should not now be permitted to avoid
when the outcome of the litigation was not what she had hoped.
Moreover, the court may not consider “the parties’ comparative
economic power,” as Plaintiff requests, because “[s]uch a factor
would almost always favor an individual plaintiff . . . over her
employer defendant” and “the plain language of Rule 54(d) does
not
contemplate
strengths.”
a
comparison
of
the
parties’
financial
Cherry, 186 F.3d at 448.
In sum, the court will decline to exercise its discretion
to deny taxable the costs properly assessed by the clerk.
12
IV.
Conclusion
For the foregoing reasons, Plaintiff’s motion for review of
the clerk’s order of taxation will be denied.
A separate order
will follow.
________/s/_________________
DEBORAH K. CHASANOW
United States District Judge
13
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