Greater New York Mutual Insurance Company v. Lavelle Industries, Inc. et al

Filing 136

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Plaintiff Greater New York Mutual Insurance Company's Motion for Disallowance of Costs (Docket Entry # 132 ); Plaintiff Greater New York Mutual Insurance Company� 39;s Motion for Disallowance of Costs (Docket Entry # 134 ). The motions to disallow costs (Docket Entry ## 132 , 134 ) are ALLOWED in part and DENIED in part. With respect to Toto, it is awarded the following fees: $2,482.15 for transcript s, $1,363.12 for copying, and $5,591.00 for witnesses. With respect to Lavelle, it is awarded the following fees: $164.00 for service of summons, $2,638.25 for transcript costs, $4,827.25 for witness fees, and $1,424.85 for copying. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
GREATER NEW YORK MUTUAL
INSURANCE COMPANY,
Plaintiff,
v.
CIVIL ACTION NO.
13-10164-MBB

LAVELLE INDUSTRIES, INC. and
TOTO U.S.A., INC.,
Defendants.

MEMORANDUM AND ORDER RE:
PLAINTIFF GREATER NEW YORK MUTUAL INSURANCE COMPANY’S MOTION FOR
DISALLOWANCE OF COSTS (DOCKET ENTRY # 132); PLAINTIFF GREATER
NEW YORK MUTUAL INSURANCE COMPANY’S MOTION FOR DISALLOWANCE OF
COSTS (DOCKET ENTRY # 134)
April 25, 2017

BOWLER, U.S.M.J.
Pending before this court are two motions to disallow
costs filed by plaintiff Greater New York Mutual Insurance
Company (“plaintiff”).

(Docket Entry ## 132, 134).

Plaintiff

objects to various items in a bill of costs filed by defendant
Lavelle Industries, Inc. (“Lavelle”) and another bill of costs
filed by defendant Toto U.S.A, Inc. (“Toto”).

(Docket Entry ##

131, 133).
After a seven-day trial, the jury found in favor of Lavelle
and Toto (“defendants”) against plaintiff.

A final judgement

entered on August 3, 2016 dismissing this action on the merits.
(Docket Entry # 130).

As prevailing parties, Lavelle and Toto

each filed a bill of costs.

(Docket Entry ## 131, 133).

Plaintiff’s motions seek to disallow a substantial portion of
these costs.
DISCUSSION
The recovery of costs is governed by 28 U.S.C. § 1920
(“section 1920”) and Fed.R.Civ.P. 54(d) (“Rule 54(d)”).

Section

1920 states that the “judge or clerk of any court of the United
States may tax as costs”:
(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 . . .;
(6) Compensation for court appointed experts, compensation
for interpreters, and salaries, fees, expenses, and costs
of special interpretation services.
28 U.S.C. § 1920.

Rule 54(d) requires that costs, other than

attorney’s fees, be allowed to the prevailing party, unless “a
federal statute, these rules, or a court order provides
otherwise.”

Fed.R.Civ.P. 54(d)(1).

Courts are “bound by the

limitations” established by section 1920 and costs not listed
under that section may not be awarded.

Crawford Fitting Co. v.

J.T. Gibbons, Inc., 482 U.S. 437, 444-45 (1987).
I.

Cost of Deposition Transcripts
Lavelle and Toto each request that plaintiff pay for the

deposition transcript costs of Alan Summer (“Summer”).

In

addition to Summer, Toto requests that plaintiff pay for the
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deposition transcript costs of Shaun McKenna (“McKenna”),
Richard Mansfield (“Mansfield”), Erik Deutsch (“Deutsch”), and
Julie Hong (“Hong”).

Plaintiff disagrees and argues that,

because Toto’s deposition transcripts were not entered into
evidence, they are not a permissible cost.

(Docket Entry #

134).
Section 1920 allows an award of fees for printed or
electronically recorded transcripts “necessarily obtained for
use in the case.”

28 U.S.C. § 1920(2).

The cost of depositions

is taxable if they are used at trial or introduced into
evidence.
2017).

See Conway v. Licata, 144 F.Supp.3d 212, 217 (D.Mass.

The transcript costs that Toto seeks fall within the

confines of section 1920(2) because portions of the transcripts
of McKenna, Mansfield, Deutsch, and Hong were used to crossexamine trial witnesses. However, even though portions of
Summer’s deposition were read into the record, Lavelle did not
offer any portions of that transcript and therefore plaintiff is
not responsible for the cost.
With respect to Lavelle, plaintiff submits that Lavelle did
not use the deposition transcript of Summer.
132).

(Docket Entry #

Plaintiff notes that it offered portions of the

deposition transcript of Summer into evidence.

On cross

examination, plaintiff points out that Lavelle did not counterdesignate any part of Summer’s transcript to be read to the
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jury.

(Docket Entry # 132).

Therefore, it cannot be concluded

that portions of the transcript was both “obtained for use in
the case” and was used at trial.

28 U.S.C. § 1920(2); Conway v.

Licata, 144 F.Supp.3d at 217; see Simmons v. O’Malley, 235
F.Supp.2d 442, 443 (D. Md. 2002).

Therefore, plaintiff is not

responsible for the transcript cost of Summer.
II.

Copying Costs
Plaintiff also objects to both defendants’ copying costs.

(Docket Entry ## 132, 134).

With respect to copying costs,

plaintiff submits that Toto and Lavelle each failed to show what
the charges were for, why the production of certain documents
was necessary, and that the documents were used at trial.
(Docket Entry ## 132, 134).
Section 1920(4) states, “[C]osts of making copies of any
materials where the copies are necessarily obtained for use in
the case” may be taxed.

28 U.S.C. § 1920(4).

Copying costs are

therefore taxable provided they are “reasonably necessary for
use in the case rather than incidental to the trial or incurred
in preparation for it.”

Osorio v. One World Techs., Inc., 834

F.Supp.2d 20, 23 (D.Mass. 2011).
evidence of the necessity.

There still, however, must be

See Bowing v. Hasbro, Inc., 582

F.Supp.2d 192, 210 (D.R.I. 2008) (page-by-page justification not
required, but prevailing party must offer some evidence of
necessity).
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Toto and Lavelle supplied documentation in each of its bill
of costs to show that the copies were reasonably necessary to
defend against plaintiff’s claims.
23.

See Osorio, 834 F.Supp.2d at

As explained in Osorio, in complex cases, it is reasonable

to prepare a large number of exhibits in order to prepare and
present a case within the “unknowable flow of trial.”

See id.

Defendants produced the necessary invoices for copying from the
vendors which this court finds were reasonably necessary in this
case.
III.

These costs are therefore recoverable.

See id.

Daily Trial Transcript Fees
Toto seeks $169.40 for the daily transcript of the

testimony of McKenna at trial.

(Docket Entry # 133).

Plaintiff

maintains that, because the transcript costs were not requested
in a motion filed prior to the commencement of trial, it is not
responsible for the cost.

(Docket Entry # 134).

Additionally,

plaintiff contends that the transcript was not necessarily
obtained for use in this court and therefore it is not
accountable for the cost.

(Docket Entry # 134).

Toto submits

that the transcript was necessary because plaintiff’s expert,
McKenna, offered testimony that varied dramatically from his
opinions at deposition and therefore the transcript was
essential in preparation for cross-examination.
135).

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(Docket Entry #

As noted previously, section 1920(4) states, “[C]osts of
making copies of any materials where the copies are necessarily
obtained for use in the case” may be taxed.
1920(4).

28 U.S.C. §

Here, although the transcripts were not used at trial,

“special circumstances” dictated their necessity.

See Donnelly

v. Rhode Island Board of Governors for Higher Education, 946
F.Supp. 147, 151 (D.R.I. 1996) (special circumstances were shown
where transcripts were necessary for cross examination of
adverse parties’ witnesses).

Accordingly, the daily transcript

cost ($169.40) requested by Toto is a permissible cost.
IV.

Fees For Witnesses
Plaintiff challenges the fees associated with a number of

witnesses for both defendants.

Plaintiff submits that the fees

are in excess of the statutory limits.

(Docket Entry ## 133,

134).
A. Toto’s Witness, David Nichols-Roy
Toto requests $3,114.40 in costs for its witness David
Nichols-Roy (“Nichols-Roy”).

(Docket Entry # 133).

It requests

seven days in attendance totaling $280.00, seven days of
subsistence totally $2,114.00, and a total mileage cost of
$720.40.

(Docket Entry # 133).

Plaintiff contests these

charges because Nichols-Roy only testified on two days.
Entry # 134).
i.

Attendance Fee
6

(Docket

Section 1920(3) permits witness expenses to be taxed within
the limits set forth in 28 U.S.C. § 1821 (“section 1821”).

See

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 44142, (1987).

A witness may accordingly receive $40.00 for each

day he or she attends trial, including “the time necessarily
occupied in going to and returning from the place of
attendance.”

28 U.S.C. § 1821(b).

A witness’s compensation is

not limited to the days the witness testifies, but also includes
the days the witness necessarily attends trial and the time
spent during delays.

See Haemonetics Corp. v. Fenwal, Inc., 863

F.Supp.2d 110, 117 (D.Mass. 2012).
Toto maintains that plaintiff’s counsel represented to the
court at a hearing immediately prior to trial that its case
would take one and a half days and Toto therefore scheduled its
witnesses accordingly.

(Docket Entry # 135).

For these

reasons, plaintiff is ordered to pay the daily attendance cost
for Nichols-Roy for the six days that he attended trial which
totals $240.00.
ii. Subsistence Fee
Toto next seeks a subsistence fee for the seven days that
Nichols-Roy attended trial.

Plaintiff asserts that only five

nights of hotel receipts were submitted in the bill of cost and
Nichols-Roy was on unrelated business in Washington, D.C. the
other two nights.

(Docket Entry ## 134, 135).
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A subsistence fee is available to witnesses required to
stay overnight and participate in the trial.

See id.

Accordingly, plaintiff is only responsible for five days.

The

United States General Services Administration (“GSA”) set the
daily amount in Boston for the time period in question at
$233.00 a day.

28 U.S.C. § 1821(d)(2); Sadulsky v. Town of

Winslow, 2016 WL 3039713, at *3 (D.Me. May 27, 2016); See
Bucksar v. Mayo, 2013 WL 1320445, at *2 (D.Mass. Mar. 28, 2013);
https://www.gsa.gov/portal/category/100120.

Plaintiff is

therefore responsible for a subsistence fee ($233/day) for five
nights, totaling $1,165.00.

Additionally, plaintiff is

responsible for five days of meal allowance at a per diem rate
of $69.00, for a total cost of $345.00.

See Bucksar v. Mayo

2013 WL 1320445, at *2.
Toto also requests payment for two separate airline tickets
for Nichols-Roy.

(Docket Entry # 133).

Under section

1821(c)(1), a witness traveling by common carrier may be
reimbursed for actual “transportation reasonably utilized and
the distance necessarily traveled . . . by the shortest
practical route in going to and returning from the place of
attendance.”

See Haemonetics Corp. v. Fenwal, Inc., 863

F.Supp.2d at 117.

Nichols-Roy’s flight to and from Ronald

Reagan Washington National Airport in the midst of trial was not
distance necessarily traveled for the trial.
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Plaintiff is thus

responsible only for the price of a round trip flight from
Boston to Chicago on American Airlines on the flights booked by
Nichols-Roy, which totals $278.00.
B. Toto’s Witness, Eddie Lee Johnson
Plaintiff asserts that the total amount of $4,616.00 for
Eddie Lee Johnson (“Johnson”) must be disallowed because he is a
party in the case.

(Docket Entry # 133).

Toto asserts,

however, that Johnson is neither a named party nor a person
suing in a representative capacity.

(Docket Entry # 134).

Johnson appeared as a witness in this case as a corporate
representative, which is an allowable cost.
Hasbro, Inc., 582 F.Supp.2d at 208.

See Bowling v.

Witness fees for employees

of a corporate party are allowable provided the employee is not
a real party in interest.

See Todd Shipyards Corp. v. Turbine

Services, Inc., 592 F.Supp. 380, 400 (E.D.La. 1984).

Toto is

thus entitled to recover $3,563.00 associated with Johnson’s
attendance at trial.
i.

Attendance

As stated above, section 1821(b) does not limit a witness’s
compensation to the days the witness testifies.

Rather, it also

authorizes costs for each day the witness necessarily attends
trial and the time spent during delays and temporary
adjournments.

See Haemonetics Corp. v. Fenwal, Inc., 863

F.Supp.2d at 117 (D.Mass. 2012).

Johnson attended all six days
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of trial.

Plaintiff is therefore responsible for six days of

attendance fees totaling $240.00.
ii. Subsistence Fee
A subsistence fee is permissible for witnesses required to
stay overnight and participate in trial.

See id.

Johnson

arrived the day before the trial began in order to be in
attendance and was required to stay eight nights until the
conclusion of trial.

For these reasons plaintiff is required to

pay the GSA rate for subsistence fees of $233.00 a day for the
eight days totaling $1,864.00.

Additionally, Johnson was in

Boston for nine days and therefore plaintiff is responsible for
the GSA rate for per diem meals of $69.00 a day for a total of
$621.00.
Moreover, plaintiff is required to pay the travel expenses
for Johnson.

Toto seeks an additional $700.00 in excess travel

costs for Johnson for a one-way flight from Boston to Richmond,
Virginia on August 1, 2016.

Johnson’s testimony concluded on

July 29, 2016 and therefore any additional travel costs are
impermissible.

Plaintiff is therefore responsible for the

$838.00 invoice for a round trip flight from Atlanta, Georgia to
Boston arriving July 24, 2016 and returning July 29, 2016.
C. Lavelle’s Witness, Scott Meeks
Plaintiff objects to seven Uber charges in relation to the
travel of Scott Meeks (“Meeks”).
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(Docket Entry # 134).

As

noted above, section 1821(b) does not limit a witness’s
compensation solely to the days the witness testifies.

Rather,

compensation includes each day the witness necessarily attends
trial and the time spent during delays and temporary
adjournments.

See id.

The contested but necessary Uber charges

are to and from Meeks’s hotel and the court as well as Logan
Airport.

Therefore, plaintiff is required to pay the $124.09

Uber charge.
Meeks also spent four nights in Boston and, consequently,
plaintiff is responsible for paying the GSA subsistence rate of
$233.00 per day.

Plaintiff is therefore responsible for a

$932.00 subsistence cost as opposed to the $1,975.39 requested
by Lavelle.
D. Lavelle’s Witness, Kevin Guthrie
Plaintiff contests the fees for Kevin Guthrie (“Guthrie”)
on the same basis as Toto’s witness, Johnson.
132).

(Docket Entry #

Plaintiff submits that because Guthrie is an employee of

Lavelle, the expenses are not taxable.

(Docket Entry # 132).

As noted previously, witness fees for employees of a corporate
party are allowable provided the employee is not a real party in
interest.

See Todd Shipyards Corp. v. Turbine Services, Inc.,

592 F.Supp. at 400.
party in interest.

Guthrie is not a named party nor is he a
The costs are therefore permissible.

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Additionally, Guthrie arrived on July 24, 2016 and departed
on July 29, 2016 and Lavelle is therefore entitled to receive
costs at the GSA subsistence rate of $233.00 a day for five days
totaling, $1,165.00.

28 U.S.C. § 1821(d).

Moreover, plaintiff

is responsible for the per diem meal cost at the GSA per diem
meal allowance of $69.00 per day for six days totaling $414.00.
Plaintiff is also responsible for the uncontested costs in
Lavelle’s bill of costs.
CONCLUSION
In accordance with the foregoing discussion, the motions to
disallow costs (Docket Entry ## 132, 134) are ALLOWED in part
and DENIED in part.
following fees:

With respect to Toto, it is awarded the

$2,482.15 for transcripts, $1,363.12 for

copying, and $5,591.00 for witnesses. With respect to Lavelle,
it is awarded the following fees:

$164.00 for service of

summons, $2,638.25 for transcript costs, $4,827.25 for witness
fees, and $1,424.85 for copying.

_/s/ Marianne B. Bowler_
MARIANNE B. BOWLER
United States Magistrate Judge

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