American Bank of St. Paul v. Carolina First Bank

Filing 331

ORDER granting in part 320 Plaintiff's Motion for Review of Taxation of Costs. Costs taxed in the additional amount of $20,476.25 against Defendant(Written Opinion). Signed by Judge Ann D. Montgomery on 05/09/2012. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
American Bank of St. Paul,
Plaintiff,
v.

ORDER
Civil No. 09-2240 ADM/TNL

TD Bank, N.A.,
Defendant.
______________________________________________________________________________
Eric J. Nystrom, Esq., Anthony N. Kirwin, Esq., Daniel N. Sacco, Esq., John C. Ekman, Esq., and
William P. Wassweiler, Esq., Lindquist & Vennum PLLP, Minneapolis, MN, on behalf of Plaintiff.
Alan L. Kildow, Esq., Jeffrey E. Mitchell, Esq., and Sonya R. Braunschweig, Esq., DLA Piper LLP,
Minneapolis, MN and San Francisco, CA, and Eric S. Golden, Esq., Howard S. Marks, Esq., and Joe
A. Joseph, Esq., Burr & Forman LLP, Orlando and Winter Park, FL and Birmingham, AL, on behalf
of Defendant.
_____________________________________________________________________________
This matter is before the undersigned United States District Judge for a ruling on Plaintiff
American Bank of St. Paul’s (“American Bank”) Motion for Review of the Clerk of Court’s Cost
Judgment [Docket No. 320]. In the Cost Judgment [Docket No. 294], the Clerk of the Court denied
$76,866.02 of the total $157,431.56 claimed by American Bank. American Bank argues that it is
entitled to $76,370.30 of those denied costs, including $20,476.25 in video deposition costs,
$19,683.30 in video presentation costs, and $36,210.75 related to a mock jury trial conducted for trial
preparation.
The Court upholds the Clerk’s Cost Judgment, with the exception of the denied $20,476.25 in
video deposition costs. Cost recovery for stenographic transcripts as well as video recording is

permissible. Craftsmen Limousine, Inc. v. Ford Motor Co., 579 F.3d 894, 898 (8th Cir. 2009)
(holding that video deposition costs may be taxed under 28 U.S.C. § 1920 where not unreasonable or
unnecessary); Fair Isaac Corp. v. Experian Information Solutions Inc., Civ. No. 06-4112, 2010 WL
2089999, at *1 (D. Minn. May 21, 2010) (modifying a cost judgment to include video deposition costs
in addition to written transcripts where the recordings were necessary); Morrison v. Reichhold Chems.,
Inc., 97 F.3d 460, 464 65 (11th Cir. 1996) (“[W]e hold that, when a party notices a deposition to be
recorded by nonstenographic means, or by both stenographic and nonstenographic means, and no
objection is raised at that time . . . it is appropriate under § 1920 to award the cost of conducting the
deposition in the manner noticed.”); see also 28 U.S.C. § 1920(2) (“A judge or clerk . . . may tax as
costs . . . [f]ees for printed or electronically recorded transcripts necessarily obtained for use in the
case.”). The Court is satisfied in this case that both transcripts and video recordings of the depositions
were reasonably necessary at the time they were obtained.
As for costs associated with video presentation, these are not normally taxable costs and were
not necessary here. Cf. E.E.O.C. v. Hibbing Taconite Co., Civ. No. 09-729, 2010 WL 4237318, at
*4 (D. Minn. Oct. 21, 2010) (awarding taxation of video equipment where the “Duluth courthouse
lack[ed] multimedia equipment to easily display such evidence.”). Additionally, mock jury trial fees and
jury consultant costs are generally categorized as attorneys’ fees, not taxable costs, and were not
reasonably necessary in this case. See, e.g., Ryther v. KARE 11, 864 F. Supp. 1525, 1534 (D. Minn.
1994) (“The court also concludes that defendants should not be taxed . . . fees charged by a jury
consultant who helped plaintiff develop the juror questionnaire and assisted in jury selection.”); Charles
v. Daley, 846 F.2d 1057, 1075 77 (7th Cir. 1988) (reducing the district court’s award of mock oral
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argument costs awarded as attorneys’ fees). Accordingly, these costs were correctly denied by the
Clerk of Court as not reasonably necessary.
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

American Bank’s Motion for Review of the Clerk of Court’s Cost Judgment
[Docket No. 320] is GRANTED in part; and

2.

The Cost Judgment [Docket No. 294] is modified to allow an additional
$20,476.25 in costs.

LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: May 9, 2012.

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