Smith-Bunge v. Wisconsin Central, Ltd., et al.

Filing 171

ORDER granting in part 169 Motion for Review of Taxation of Costs (Written Opinion) Signed by Senior Judge David S. Doty on 6/7/2018. (DLO)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 15-4383(DSD/LIB)
Todd Smith-Bunge,
Plaintiff,
v.
ORDER
Wisconsin Central, Ltd.,
a corporation,
Defendant.
Jeff Dingwall, Esq and Eight & Sand, 550 West B Street, Suite
Fourth Floor, San Diego, CA 92101, counsel for plaintiff.
Emily A. McNee, Esq and Littler Mendelson, PC, 80 South 8th
Street, Suite 1300, Minneapolis, MN 55402, counsel for
defendant.
This matter is before the court upon the motion for review of
taxation of costs by plaintiff Todd Smith-Bunge. Based on a review
of the file, record, and proceedings herein, and for the following
reasons, the court grants the motion in part.

BACKGROUND
On August 31, 2017, the court granted defendant Wisconsin
Central,

Ltd.’s

motion

for

summary

judgment

Federal Railroad Safety Act (FRSA) claim.

on

Smith-Bunge’s

On January 1, 2018, the

parties agreed to dismiss the remaining Federal Employers Liability
Act claim (FELA).

On April 18, 2018, the clerk of court taxed

$11,265.32 in favor of Wisconsin Central.

Smith-Bunge now moves

for review of the cost judgment, raising several objections.

DISCUSSION
I.

Prevailing Party
Smith-Bunge first argues that the court should not consider

Wisconsin Central the prevailing party because it only prevailed on
the FRSA claim.
A

party

This argument is wholly without merit.

who

prevails

as

to

a

substantial

part

of

the

litigation is considered the “prevailing party” under Fed. R. Civ.
P. 54(d), “even if it has not succeeded on all of its claims.”
SuperTurf, Inc. v. Monsanto Co., 660 F.2d 1275, 1287-88 (8th Cir.
1981); see also Testa v. Village of Mundelein, Ill., 89 F.3d 443,
447 (8th Cir. 1996)(“[T]he prevailing part is the party who
prevails as to the substantial part of the litigation.”).

Here,

Wisconsin Central prevailed on the FRSA claim, and the parties
agreed to dismiss the FELA claim.

Accordingly, the court finds

that Wisconsin Central is the prevailing party.

See Walton v.

Autorol Corp., No. 3:95-CV-0926-R, 1998 WL 531881, at *1 (N.D. Tex.
Aug. 18, 1998)(holding that plaintiff was prevailing party where
court granted partial summary judgment in favor of plaintiff and
remaining claims were dismissed by stipulation).
II.

Taxable Costs
The court has “substantial discretion” in awarding costs to a

prevailing party under 28 U.S.C. § 1920 and Federal Rule of Civil
Procedure 54(d).

Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 363

(8th Cir. 1997).

Unless a federal statute, rules, or court order
2

provides otherwise, “costs - other than attorney’s fees - should be
allowed to the prevailing party.”

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

Smith-Bunge has the burden to show that the cost judgment “is
inequitable under the circumstances.”

Concord Boat Corp. v.

Brunswick Corp., 309 F.3d 494, 498 (8th Cir. 2002)(citation and
internal quotation marks omitted).
A.

Deposition of Todd Smith-Bunge

Smith-Bunge objects to the taxation of costs incurred by
defendants in deposing him.

He argues, without citation to legal

authority, that Wisconsin Central failed to apportion the costs of
the

deposition

between

testimony

that

was

relevant

successful FRSA claim and the dismissed FELA claim.

to

the

The court is

not persuaded.
The court believes it would be inappropriate to reduce the
costs of a deposition based on the percentage of the testimony that
was relevant to the successful claim.

Not only would such an

undertaking be overly burdensome, “there is a strong presumption
that a prevailing party shall recover [taxable costs] in full
measure.”

Concord Boat, 309 F.3d at 498 (citation and internal

quotation marks omitted).

Indeed, the Eighth Circuit has rejected

the argument that costs should not be awarded for depositions
related to unsuccessful claims.

Zotos, 121 F.3d at 363.

The key

question in awarding costs is not what percentage of the deposition
was relevant to the successful claim, but rather, whether the

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deposition was “necessarily obtained for use in [a] case and was
not purely investigative.”
marks

omitted)(alteration

Id. (citation and internal quotation
in

original).

Here,

Smith-Bunge’s

deposition was reasonably necessary because he was the plaintiff.
As a result, the cost of the deposition was properly taxed.1
Smith-Bunge also objects to the taxation of $1,653.75 for the
video recording of his deposition, arguing it was not reasonably
necessary.

Both video recordings and written transcripts for the

same deposition are taxable if they are reasonably necessary.
Stanley v. Cottrell, Inc., 784 F.3d 454, 467 (8th Cir. 2015).
Wisconsin Central argues that a video recording of the deposition
was reasonably necessary because although Smith-Bunge was expected
to testify at trial, his ongoing medical condition and treatment
could have prevented him from doing so. The court is not persuaded
that a video recording was reasonably necessary.
Both in the submitted bill of costs and their moving papers,
Wisconsin Central vaguely refers to Smith-Bunge’s health issues,
but without specific evidence showing that those health issues
would make Smith-Bunge unable to testify at trial.

This is

insufficient to show that such costs were reasonably necessary.
See

Golan v. Veritas Ent’mt, LLC, No 4:14-CV-00069, 2017 WL

5564538, at *6 (E.D. Mo. Nov. 20, 2017)(refusing to tax costs for

1

For the same reason, the taxation of costs for the
depositions of Monte Chapman and Thomas Swalboski is appropriate.
4

a video recording where there was no evidence indicating that the
witness would be unavailable for trial).

Accordingly, the court

will reduce the taxation of costs awarded to Wisconsin Central by
$1,653.75.
B.

Depositions of Daniel Lofgren and Michael Rogers

Next, Smith-Bunge objects to the taxation of costs incurred
for the depositions of Daniel Lofgren, who was his expert witness,
and

Michael

Rogers.

Again,

Smith-Bunge

argues

that

these

depositions were mostly relevant only to the dismissed FELA claim,
but, as discussed above, this is irrelevant.
Additionally,
reasonably

the

necessary

court

finds

because

both

that

the

witnesses

depositions
had

were

information

relevant to the claims and defenses in the case. Lofgren served as
plaintiff’s expert witness to as to causation, and Rogers was an
expert witness during the investigative hearing that served as
Wisconsin Central’s basis for terminating Smith-Bunge’s employment.
Further, the court relied on both depositions in granting summary
judgment on the FRSA claim.

ECF No. 129 at 2; see Ryther v. KARE

11, 864 F. Supp. 1525, 1534 (D. Minn. 1994)(“The most direct
evidence of necessity is the actual use of a transcript in a court
proceeding.”).

As a result, the clerk properly taxed the costs of

these depositions.

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C.

Depositions of Tom Bourgonje, Elizabeth Smith-Bunge, and
Jonathan Speare

Smith-Bunge also argues that the depositions of Tom Bourgonje,
Elizabeth Smith-Bunge, and Jonathan Speare were improperly taxed
because their depositions were not submitted by Wisconsin Central
in support of their summary judgment motion.

But the fact that a

deposition was not relied upon by a party in a motion or at trial
does not mean that the deposition was not reasonably necessary.
See Superior Seafoods Inc. v. Hanft Fride, No. 05-170, 2011 WL
6218286, at *1 (D. Minn. Nov. 21, 2011), R&R adopted by 2011 WL
6218000 (D. Minn. Dec. 14, 2011)(“[D]eposition transcripts for
witnesses that possess[] information relevant to the claims or
defenses in the case may be taxed, even though the transcripts were
not used at summary judgment.”).

The court must determine whether

a deposition was necessary “in light of the facts known at the time
of the deposition, without regard to intervening developments that
later render the deposition unneeded for further use.”

Zotos, 121

F.3d at 363 (citation and internal quotation marks omitted).
Bourgonje’s deposition was noticed by Smith-Bunge and was
cited by him in his memorandum opposing summary judgment. Although
Wisconsin Central did not cite to Bourgonje’s deposition, it was
reasonably necessary to obtain a transcript so that it could
adequately respond to any claims made by Smith-Bunge. See Shukh v.
Seagate Tech., LLC, No. 10-404, 2014 WL 4348199, at *4 (D. Minn.

6

Sept 2, 2014), vacated on other grounds by 618 Fed. App’x 678 (Fed.
Cir. 2015)(“Generally, courts allow the prevailing party to recover
the costs for depositions noticed and taken by the losing party.”).
Elizabeth Smith-Bunge’s and Jonathan Speare’s depositions were
also reasonably necessary.

Ms. Smith-Bunge, plaintiff’s wife, and

Jonathan Speare, his treating psychologist, both had relevant
information concerning his claims of mental anguish and emotional
distress.

Accordingly, the clerk properly taxed the cost of these

depositions.
D.

Incidental Deposition Costs

Smith-Bunge
deposition fees.

next

objects

to

the

taxation

of

incidental

Specifically, he argues that fees incurred for

shipping, handling, “real legal e-transcript,” and “read & sign”
are not taxable costs. The court agrees that these are not taxable
costs, but the record reflects that Wisconsin Central withdrew, and
the clerk did not tax, these costs.2
No. 162 at 1 n.1.

See ECF No. 148 at 15; ECF

Smith-Bunge does not point to any other

incidental costs that were improperly taxed.

Accordingly, the

clerk properly taxed the fees for transcripts.3

2

This confusion, and the waste of the court’s time, could
have been easily avoided had Smith-Bungee filed specific objections
to the cost judgment rather than relying on the same memorandum he
filed with the clerk objecting to the bill of costs. See D. Minn.
LR 54.3(c)(1)(B).
3

As previously discussed, the court will exclude the fees for
the video recording of Smith-Bunge’s deposition.
7

E.

Photocopying Fees

Finally, Smith-Bunge objects to the taxation of $2,207.02 in
copying fees, arguing that they were not reasonably incurred.

The

court disagrees. The record in this case was extensive, comprising
more than 900 documents produced by Smith-Bunge, over 300 pages of
medical records, and 1,300 pages produced by Wisconsin Central.
McNee Decl. ¶ 4.

It is undisputed that most of the fees were

incurred in copying these documents for use as exhibits in SmithBunge’s deposition.

The court agrees with Wisconsin Central that

although some of these documents were not ultimately used in the
deposition, the copies were reasonably necessary so that counsel
could be adequately prepared.

See Ventura v. Kyle, No. 12-472,

2015 WL 12826467, at *4 (D. Minn. Jan. 13, 2015)(“[C]ourtesy copies
of trial exhibits for the Court and for witnesses are properly
taxed under Section 1920(4).”).

As a result, the clerk properly

taxed $2,207.02 for copying fees.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

Plaintiff’s motion for review of taxation of costs [ECF

No. 169] is granted in part as set forth above; and

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2.

The clerk of court is ordered to amend the cost judgment

to reflect a reduction of $1,653.75 for transcript fees.

Dated: June 7, 2018
s/David S. Doty
David S. Doty, Judge
United States District Court

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