Machie v. Detroit Library Commission et al

Filing 72

OPINION and ORDER granting defendant's Motion for taxed Bill of Costs and denying Plaintiff's motion to supplement the record. 70 64 . Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Julie Machie,
Case No. 12-15299
Plaintiff,
Honorable Nancy G. Edmunds
v.
Detroit Library Commission, a/k/a Detroit
Public Library, an independent municipal
corporation; Russell Bellant, in his individual
and official capacity as Commissioner of
the Detroit Public Library Commission,
Georgia Hill, in her individual And official
capacity as former Commissioner and
President of the Detroit Public Library
Commission, jointly and severally,
Defendants.
/

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR TAXED BILL OF
COSTS AND DENYING PLAINTIFF'S MOTION TO SUPPLEMENT THE RECORD [64
& 70]
Currently before the Court is Defendants' motion for an order granting their amended
bill of costs. For the reasons set forth below, the Court GRANTS Defendants' motions and
approves their amended bill of costs.
I.

Facts
Plaintiff brought this lawsuit alleging various employment discrimination claims. The

Court granted Defendants' motion for summary judgment and dismissed the case.
Defendants sought to recover the cost of depositions, as they are entitled to do as the
prevailing parties. The Court Clerk, however, denied certain costs, including the cost of
taking Plaintiff's deposition and the deposition of a non-party witness.

For unknown reasons, Plaintiff was unable to depose Jonathan Kinloch until well
after the dispositive motions in this case were ruled on and Plaintiff's case was dismissed.
Plaintiff now seeks to add elements of the that deposition to the record under the auspices
of Federal Rule of Civil Procedure 15(d).
Plaintiff does not contest that Defendants are entitled to the deposition costs for the
non-party witness, which amount to $221.50. However, Plaintiff does contest the amount
sought for her deposition. Plaintiff's deposition was taken over the course of four sessions,
totaling seventeen hours of questioning, and Defendants seek to recover $2,445.25 in
costs.
II.

ANALYSIS
A. General Principles for Assessing Costs under Rule 54(d) and § 1920
In addressing similar disputes in the past, this Court has stated that:
Rule 54(d) of the Federal Rules of Civil Procedure establishes that the
prevailing party shall be allowed to recover its costs unless the court directs
otherwise. Costs that may be taxed are specified in 28 U.S.C. § 1920.” BDT
Products, Inc. v. Lexmark Int'l, Inc., 405 F.3d 415, 417 (6th Cir.2005)
(footnotes omitted). Section 1920 provides for the recovery of the following
costs: (1) Fees of the clerk and marshal; (2) Fees of the court reporter for all
or any part of the stenographic transcript necessarily obtained for use in the
case; (3) Fees and disbursements for printing and witnesses; (4) Fees for
exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title; (6) Compensation of court
appointed experts, compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation services under section 1828 of
this title.28 U.S.C. § 1920.
“The prevailing party has the burden of establishing that the expenses it
seeks to have taxed as costs are authorized by applicable federal law,
including proof of necessity and reasonableness under 28 U.S.C. § 1920.”
Keweenaw Bay Indian Community v. Rising, No. 2:03-CV-111, 2005 WL
3535124 (W.D.Mich. Dec.22, 2005) (internal quotations and citation omitted).

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“The court has broad discretion in allowing or disallowing the particular items
listed in § 1920 as costs.” BDT Products, 405 F.3d at 419. “In reviewing a
request for taxation of costs, a court must look first to whether the expenses
are allowable cost items and then to whether the amounts are reasonable
and necessary.” Whirlpool Corp. v. LG Electronics, Inc., No. 1:04-CV-100,
2007 WL 2462659 (W.D.Mich. Aug.26, 2007) (internal quotations and citation
omitted).
City of Sterling Heights v. United Nat'l Ins. Co., 03-72773, 2008 WL 920135 (E.D. Mich.
Apr. 3, 2008).
Furthermore, "the costs of taking and transcribing depositions reasonably necessary
for the litigation are [ordinarily] allowed to the prevailing party. Necessity is determined as
of the time of taking, and the fact that a deposition is not actually used at trial is not
controlling." Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989).
B. The taking of Plaintiff's deposition was reasonably necessary at the time
of its taking
Plaintiff argues that the costs sought to be recovered for her deposition are
unreasonably high, and additionally, that because only two of the four deposition sessions
were actually cited to by Defendants during the course of the litigation, that the two uncited
sessions were not necessary. Plaintiff's necessity analysis is incorrect.
Defendants point to a case from the Eastern District of Virginia that makes a salient
and relevant point, particularly in light of the fact that it is Plaintiff's own deposition at issue,
not merely that of a non-party witness. The court in Jop v. City of Hampton, Va., 163 F.R.D.
486, 488 (E.D. Va. 1995), granted the sought after costs, noting that:
It is evident that at that stage of a civil case—a full four months before trial—it
would be “reasonably necessary” for the defendants to depose the plaintiff
in order to prepare for trial. Indeed, not only was it “reasonably necessary,”
it was probably essential. It would be, at the very least, bordering on legal
malpractice not to have done so.
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And so it is here. The taking of the Plaintiff's deposition in this case was not, in this Court's
opinion, optional, and so Defendants can be said to have taken the reasonably necessary
step of deposing her. While Plaintiff is correct in stating the depositions taken merely for
discovery purposes are not recoverable, this is not such a case. As noted above, it was
essential to depose Plaintiff in order for Defendants to prepare for trial.
As to the reasonableness of the amount, given, again, that the deponent was the
Plaintiff herself, it would seem that a thorough deposition was called for, and an amount of
$2,445.25 for four deposition sessions does not strike the Court as unreasonable on its
face.
In light of the above, the Court finds that Defendants' sought after costs were
reasonably necessary and should be allowed by the Clerk.
B. Plaintiff's Motion to Supplement the Record Is Denied
As the Court stated on the record, and for the reasons stated thereon, the Court
DENIES Plaintiff's motion to supplement the record under Rule 15(d). Additionally, as rule
15 motions are broadly within the Court's discretion, it was up to Plaintiff to convince the
Court why such an addition to the record was necessary, and also to demonstrate that Rule
15(d) even applies in this instance, as that rule is designed to allow additional pleadings
that set forth "any transaction, occurrence, or event that happened after the date of the
pleading to be supplemented." Here, while the deposition itself happened later, the
contents of the deposition describe a "transaction, occurrence, or event" that occurred
before the lawsuit was even filed. Seeing as it is not the fact of the deposition that Plaintiff
seeks to add, but the facts described in its contents, Rule 15(d) is likely not the appropriate
vehicle for this motion.
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Furthermore, as Plaintiff's counsel indicated that the goal of his motion was to add
to the record for the purposes of his appeal, in the Sixth Circuit, such a motion is better
made to the appellate court, seeing as "appellate courts have generally prevented trial
courts from developing supplemental findings after the notice of appeal has been filed."
Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1013 (6th Cir. 2003). In
this case, Plaintiff's motion was not filed until after the notice of appeal was filed.
Therefore, Plaintiff's motion to supplement the record is DENIED.
III.

CONCLUSION
For the reasons set forth above, the Court GRANTS Defendants' motion and orders

and allows Defendants to amend their taxed bill of costs to include the hereby approved
amounts of:
1- $221.50 for the deposition of Judge Edward Thomas, and;
2- $2,445.25 for the deposition of Plaintiff Julie Machie.
Additionally, the Court DENIES Plaintiff's motion to supplement the record.
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: September 15, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of record
on September 15, 2014, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager

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