Green v. State Farm Fire and Casualty
Filing
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ORDER Denying 29 Motion. Signed by District Judge Victoria A. Roberts. (LVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CORNELIUS GREEN,
Plaintiff,
Hon. Victoria A. Roberts
Case No. 10-12287
v.
STATE FARM FIRE AND CASUALTY COMPANY,
Defendant,
________________________/
ORDER DENYING DEFENDANT’S MOTION
TO REVIEW TAXED BILL OF COSTS
I. Introduction
This matter is before the Court on State Farm Fire and Casualty Company’s
(“Defendant”) Motion for Review of Taxed Bill of Costs. The Motion is DENIED.
I. Background
Following a judgment entered in Plaintiff’s favor on July 18, 2011, Plaintiff filed a Bill
of Costs, seeking costs in the amount of $2129.96. On August 4, 2011, the Clerk taxed
costs against the Defendant in the amount of $1885.30. On August 9, 2011, Defendant
filed a Motion for Review of Taxed Bill of Costs raising several objections.
First, Defendant says Plaintiff is not entitled to court reporter fees because the
deposition transcripts were not filed with the court as required by Federal Rules of Civil
Procedure 5(d)(1). Defendant also objects to the subsistence charges for Mr.
Churchwood. Defendant says his overnight hotel stay was unnecessary because Mr.
Churchwood lives about three hours from the courthouse. Finally, Defendant objects to
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paying for Mr. Churchwood’s mileage because he lives outside of the State of Michigan.
Defendant says this is beyond the Court’s subpoena power. Defendant objects to
$1847.30 of the taxed costs.
II. Analysis
A. Principles for Taxing Costs
Pursuant to Federal Rules of Civil Procedure 54(d), “costs other than attorneys'
fees shall be allowed as of course to the prevailing party unless the court otherwise
directs.” Fed. R. Civ. P.54 (d)(1). A detailed list of costs that may be taxed is contained
in 28 U.S.C. § 1920. The court has broad discretion to allow or bar taxation of costs for
the items set forth in § 1920. City of Sterling Heights v. United National Ins. Co., No. 0372773, 2008 U.S. Dist. LEXIS 26990, at *8 (E.D. Mich. Apr. 3, 2008); BDT Products,
Inc. v. Lemark Int’l, Inc., 405 F.3d 415, 419. (6th Cir. 2005).
B. Defendant’s Motion for Review Taxed Bill of Costs
Defendant objects to costs taxed by the Clerk. Specifically, Defendant objects to
taxation of costs for reporters fees, subsistence charges and mileage expenses incurred
as a result of Plaintiff’s out of state witness. When a party objects to costs taxed by the
clerk, that party has the burden to persuade the court that the taxed costs are improper.
BDT Products, 405 F.3d at 420.
1. Reporter Fees
Defendant objects to the allowance of costs for reporter fees for two reasons.
First, Defendant says taxation of costs for reporter fees is improper because the
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deposition transcripts were not filed with the court. Defendant cites Fed. R. Civ. P.
5(d)(1) in support of this proposition.
Under FRCP 5(d)(1), “any paper after the complaint that is required to be served
together with a certificate of service must be filed within a reasonable time after service.
But disclosures under Rule 26(a)(1) or (2) and the following discovery requests and
responses must not be filed until they are used in the proceeding or the court orders
filing: depositions, interrogatories, requests for documents or tangible things or to permit
entry onto land, and requests for admission.” Fed. R. Civ. P. 5(d)(1).
Defendant’s reliance on Fed .R. Civ. P. 5(d)(1) is misplaced. Section 1920(2)
provides for the “taxation of fees of the court reporter for all or any part of the
stenographic transcript necessarily obtained for use in the case.” 28 U.S.C. §1920(2).
Thus, “the proper inquiry is whether the depositions were necessarily obtained for use in
the case.” Smith v. Oppenheimer, No. G83-948 CA7, 1989 U.S. Dist. LEXIS 18083, at
*11 (W.D. Mich. July 21, 1989).
In Caudill v. Sears Transition Pay Plan, this Court held that “depositions
reasonably necessary for preparation of trial can be taxed by the prevailing party even if
they were not filed. No. 06-12866, 2011 U.S. Dist. LEXIS 45294, at *3 (E.D. Mich. Apr.
26, 2011). Moreover, filing is permissible “at the conclusion of the trial or other
proceeding in which it was used or at a later time that the court permits. E.D. Mich. LR
26.2(a)(2).
The Court finds Plaintiff’s deposition costs in the amount of $1540.30 to be
properly taxable costs pursuant to 28 U.S.C. § 1920(2).
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Second, Defendant says taxation of costs for reporter fees is improper because
the bill includes charges for a mini-copy of the deposition transcript and an e-transcript.
However, according to Plaintiff, when the original transcript was ordered, the mini-copy
and e-transcript came free upon request. Since no costs are associated with the minicopy and e-transcript, the Court need not address this issue.
2. Subsistence and Mileage Charges
Defendant objects to the subsistence and mileage expenses for Mr.
Churchwood.
Defendant asserts that Mr. Churchwood’s overnight stay at the hotel was
unnecessary since he lives in Fort Wayne, Indiana, a three hour drive from the
courthouse. Plaintiff seeks taxation of these costs in accordance with 28 U.S.C. §1821
and 1920(3). Section 1920(3) says, “a judge or clerk of any court of the United States
may tax as costs the fees and disbursements for printing and witnesses.” 28 U.S.C. §
1920. Moreover, Section 1821(d)(1) provides: “a subsistence allowance shall be paid to
a witness when an overnight stay is required at the place of attendance because such
place is so far removed from the residence of such witness as to prohibit return thereto
from day to day.” 28 U.S.C. §1821.
According to Plaintiff, Mr. Churchwood’s overnight hotel stay was necessary
because while Mr. Churchwood lives in Fort Wayne, Indiana, he was not traveling from
his residence; he came from a business conference in Florida, requiring him to fly in into
Detroit the night before trial.
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Defendant also objects to paying for Mr. Churchwood’s mileage expenses.
Defendant says allowance of costs for his mileage is improper because he lives outside
the State of Michigan, beyond the Court’s subpoena power.
Generally, absent special circumstances, taxation of costs for the travel
expenses of witnesses is limited to the 100 mile radius rule, provided by Fed. R. Civ. P.
45(e). Smith v. Oppenheimer, No. G83-948 CA7, 1989 U.S. Dist. LEXIS 18083, at *11
(W.D. Mich. July 21, 1989). However, “this rule is not inflexible, as it is within the Court’s
discretion to tax as costs, expenses for transporting witness beyond the 100 mile limit.”
Smith, 1989 U.S. LEXIS 18083, at *11; Farmer v. Arabian Am. Oil Co., 379 U.S. 227,
232 (1964). The words “unless the court otherwise directs” taken from Fed. R. Civ. P.
54(d), “quite plainly vest some power in the court to allow some costs.” Farmer, 379
U.S. at 232.
The Court finds Plaintiff’s subsistence and mileage expenses in the amount of
$345.00 to be properly taxable costs.
III. Conclusion
Defendant’s Motion for Review of Taxed Bill of Costs is DENIED. Defendant must pay
Plaintiff costs in the amount of $1885.30.
IT IS ORDERED.
/s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: 9/28/11
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The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
September 28, 2011 September 28, 2011.
S/Linda Vertriest
Deputy Clerk
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