Peeples et al v. Detroit, City of et al

Filing 148

OPINION AND ORDER Regarding Costs. Signed by District Judge Sean F. Cox. (BSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Erick Peeples, et al.,
Plaintiffs,
v.

Civil Action No. 13-13858

City of Detroit, et al.,

Sean F. Cox
United States District Court Judge

Defendants.
____________________________/
OPINION & ORDER
REGARDING COSTS
In this action, Plaintiffs asserted Title VII claims against their labor union, the Detroit
Fire Fighters Association, Local 344, IAFF, AFL-CIO (“the Union”). This Court granted
summary judgment in favor of the Union as to Plaintiffs’ claims. As the prevailing party in this
case, the Union filed a Bill of Costs seeking a total of $10,334.87 in costs. After the Clerk of the
Court taxed costs in the amount of $9,302.17, both Plaintiffs and the Union filed objections. As
explained below, the Court finds Plaintiffs’ objections without merit and concludes that the
Union should be awarded the full amount of costs sought.
BACKGROUND
On September 10, 2013, Plaintiffs filed this action asserting Title VII disparate-treatment
race discrimination claims against: 1) the City of Detroit (“the City”); and 2) the Union.
Following the close of discovery, each Defendant filed a Motion for Summary Judgment.
This Court issued an Opinion & Order on January 26, 2017, wherein it granted both motions.
(ECF No. 91). As to the City’s motion, this Court concluded that Plaintiffs failed to present

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direct evidence to support their claims and that they also failed to establish a prima facie case
under the circumstantial evidence approach, which includes a heightened burden in this
reduction-in-force case. (Id. at 2). As to the Union’s motion, this Court granted summary
judgment in favor of the Union because Plaintiffs cannot establish that the Union breached its
duty of fair representation to Plaintiffs which, under then-existing Sixth Circuit case law, they
must do in order to proceed with a Title VII claim against the Union.
After the Judgment was issued, the Union filed a Bill of Costs. (ECF Nos. 93 & 94).
The Clerk of the Court taxed costs against Plaintiffs in the amount of $9,302.17, less than the full
amount requested by the Union. (ECF No. 95). Both Plaintiffs and the Union filed objections
concerning costs. (ECF Nos. 96 & 97).
In an Order issued on March 27, 2017, this Court addressed the objections and ruled that
the Union should be awarded the entire amount of costs sought for deposition transcripts. (ECF
No. 109). In doing so, this Court explained, in pertinent part:
Having reviewed the parties’ objections, the Court concludes that the
Union should be awarded the entire amount of costs sought for deposition
transcripts.
“Rule 54(d) of the Federal Rules of Civil Procedure provides that ‘costs
shall be allowed as of course to the prevailing party unless the court otherwise
directs.’ This language creates a presumption in favor of awarding costs, but
allows denial of costs at the discretion of the trial court.” White & White, Inc. v.
American Hosp. Supply Corp., 786 F.2d 728, 730 (6th Cir. 1986). Thus, the
award of costs under Rule 54 is addressed to the court’s discretion. Singleton v.
Smith, 241 F.3d 534, 538 (6th Cir. 2001).
One allowable cost – the only one at issue here – is the cost of “[f]ees for
printed or electronically recorded transcripts necessarily obtained for use in the
case.” 28 U.S.C. § 1920(2).
“Ordinarily, the costs of taking and transcribing depositions reasonably
necessary for the litigation are allowed to the prevailing party. Necessity is
determined at 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).
The five deposition transcripts that Plaintiffs take issue with are those of
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Vincent Fields, Ralph Glenn, Jr., Lee Jones, Jr., John King, and Marcus Holmes.
The Court concludes that those deposition transcripts were reasonably necessary
for the litigation.
Fields, Glenn, and Jones were named Plaintiffs and, as such, it was
necessary for the Union to depose those men in order to defend against this
lawsuit.
Moreover, district courts within this Circuit have “found that depositions
cited by either party in support or defense of a motion are ‘reasonably necessary
for the litigation’ and, therefore, are taxable by the prevailing party under §
1920(2).” See, e.g., Lamar v. Oakland Cnty., 2008 WL 239830 at * 1 (E.D. Mich.
2008); see also Keweenaw Bay Indian Cmty. v. Rising, 2005 WL 3535124 at *2
(W.D. 2005). All of the transcripts at issue were submitted to the Court in
connection with the Defendants’ Motions for Summary Judgment. That these
transcripts were submitted by Plaintiffs’ Counsel, rather than Defense Counsel,
does not make them any less necessary for the determination of the issues
presented to the Court.
Accordingly, IT IS ORDERED that the Court OVERRULES Plaintiffs’
Objections (D.E. No. 96) and SUSTAINS the Union’s Objections. (D.E. No. 97).
The Court ORDERS that the Union is entitled to costs in the total amount of
$10,334.87.
IT IS SO ORDERED.
(Id.).
Plaintiffs appealed this Court’s summary judgment rulings to the United States Court of
Appeals for the Sixth Circuit. The EEOC appeared in the action and filed an amicus curiae brief,
urging the Sixth Circuit to change its position and rule that the standards governing a duty of fair
representation claim do not govern Title VII discrimination claims against a union.
In a published opinion, the Sixth Circuit affirmed this Court’s summary judgment ruling
in favor of the City. Peeples v. City of Detroit, 891 F.3d 622 (6th Cir. 2018). The Sixth Circuit
agreed that Plaintiffs had not produced any direct evidence in support of their claims. Id. at 63334. The appellate court also agreed that Plaintiffs had not met their burden under the
circumstantial-evidence approach. Id. at 634-36.
The Sixth Circuit then changed its position on the issue of whether a union has to show a

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breach of the duty of fair representation in order to proceed with a Title VII claim. Id. at 636-38.
Because this Court had granted summary judgment in favor of the Union on that issue, without
considering the merits of the Title VII claims against the Union (as it did with the City), the case
was remanded as to the Title VII claims against the Union.
Following remand, the parties agreed that the Court’s order concerning costs should be
vacated, in light of the remand, without prejudice to any of the remaining parties seeking costs,
as appropriate, in the future. (ECF No. 121).
The Union then filed a summary judgment motion challenging the merits of Plaintiffs’
Title VII claims against it. (ECF No. 122). In connection with that motion, both Plaintiffs and
the Union referenced various portions of the record evidence that was previously filed on the
docket by the parties, in connection with the prior summary judgment motions. That included
deposition transcripts.
In an Opinion & Order issued on February 4, 2019, this Court granted the Union’s
summary judgment motion and issued a judgment that same day. (ECF Nos. 136 & 137).
On February 5, 2019, the Union filed a Bill of Costs, again seeking a total of $10,334.87
in costs, which consists of court reporter and deposition transcript fees. (ECF No. 138). The
Clerk of the Court again taxed costs in the amount of $9,302.17 – the same amount previously
taxed. The costs denied by the Clerk were explained as follows:
Court reporter fees as to witnesses John King ($328.00), Vincent Fields
($527.60), and Marcus Holmes ($177.10) are denied, as the bills of costs
documents that the corresponding deposition transcripts were used only by
plaintiffs in support of their motion response, and not by the prevailing
defendants. (The costs for these witnesses are included in invoice numbers
604445, 600956, and 598011 in the bill of costs. Costs for these witnesses were
determined by adding the cost of their transcripts, plus one-half the cost for the
document imaging fees.)
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(Id.). That is the same explanation for the denial of previous costs requested by the Union.
Once again, both Plaintiffs and the Union are not satisfied with the costs taxed by the
Clerk of the Court and each filed objections. (ECF Nos. 140 & 141).
ANALYSIS
After remand, this Court granted summary judgment in favor of the Union as to
Plaintiffs’ claims against it. The Clerk of the Court taxed costs in the amount of $9,302.17.
Both Plaintiffs and the Union filed objections to those costs.
In their objections, Plaintiffs ask the Court to exercise its discretion and not award costs
to the Union. Plaintiffs urge the Court to view this case as having “occurred in two phases: 1)
before the Sixth Circuit’s remand (‘Phase 1’) and, 2) after the Sixth Circuit’s remand (‘Phase
2’).” (Pls.’ Objs at 2). Plaintiffs assert that “Phase 1 resulted in the Plaintiffs receiving a
reversal and published opinion from the Court of Appeals, creating new law in this Circuit towit: that establishing a breach of the duty of fair representation is not part of proving a Title VII
claim against a labor union.” (Id. at 3). Plaintiffs assert all costs sought by the Union are from
Phase 1 and, therefore, the Court should not award costs to the Union even though it is the
prevailing party in this action.
The Court finds Plaintiffs’ objection without merit. Phase 1 of this case (prior to the
Sixth Circuit’s opinion) included all discovery in this action and dispositive motion practice.
Both Plaintiffs and the Union used the deposition transcripts at issue during motion practice
during Phase 1. Following remand, the Union filed a summary judgment motion challenging
Plaintiffs’ claims on the merits. Both Plaintiffs and the Union then cited to those same
deposition transcripts in support of their respective summary judgment briefs. Thus, the costs

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sought by the Union – the cost of deposition transcripts used during dispositive motion practice –
were incurred in both phases. The Court denies Plaintiffs’ request that the Court vacate the costs
taxed by the Clerk of the Court and award no costs to the Union.
Moreover, the Court finds the Union’s objections to the amount of costs taxed by the
Clerk of the Court to have merit. The Court concludes that all of the deposition transcript costs
sought by the Union were reasonably necessary for this litigation and should be awarded in this
case.
“Rule 54(d) of the Federal Rules of Civil Procedure provides that ‘costs shall be allowed
as of course to the prevailing party unless the court otherwise directs.’ This language creates a
presumption in favor of awarding costs, but allows denial of costs at the discretion of the trial
court.” White & White, Inc. v. American Hosp. Supply Corp., 786 F.2d 728, 730 (6th Cir. 1986).
Thus, the award of costs under Rule 54 is addressed to this Court’s discretion. Singleton v.
Smith, 241 F.3d 534, 538 (6th Cir. 2001).
One allowable cost, and again the only one at issue here, is the cost of “[f]ees for printed
or electronically recorded transcripts necessarily obtained for use in the case.” 28 U.S.C. §
1920(2). “Ordinarily, the costs of taking and transcribing depositions reasonably necessary for
the litigation are allowed to the prevailing party. Necessity is determined at 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).
The costs sought by the Union that were not awarded by the Clerk of the Court were for
deposition transcripts of three individuals (King, Fields, and Holmes). As he was a plaintiff in
this case, it was clearly necessary for the Union to depose Fields in order to defend against this

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lawsuit.
Moreover, district courts within this Circuit have “found that depositions cited by either
party in support or defense of a motion are ‘reasonably necessary for the litigation’ and,
therefore, are taxable by the prevailing party under § 1920(2).” See, e.g., Lamar v. Oakland
Cnty., 2008 WL 239830 at * 1 (E.D. Mich. 2008); see also Keweenaw Bay Indian Cmty. v.
Rising, 2005 WL 3535124 at *2 (W.D. 2005). All three of the transcripts at issue were
submitted to the Court, and cited by the parties, in connection with the summary judgment
motions in this case. That transcripts were submitted or referenced by Plaintiffs’ Counsel, rather
than Defense Counsel, does not make them any less necessary for the determination of the issues
presented to the Court.
The Court concludes that the Union should be awarded the full amount of the costs of the
deposition transcripts, $10,334.87.
CONCLUSION & ORDER
Accordingly, IT IS ORDERED that the Court OVERRULES Plaintiffs’ Objections and
SUSTAINS the Union’s Objections relating to costs. The Court ORDERS that the Union is
entitled to costs in the total amount of $10,334.87.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: June 17, 2019

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