Nagel v. United Food and Commerical Workers Union, Local 653

Filing 256

ORDER. IT IS HEREBY ORDERED that Plaintiffs' motion to review costs 252 is DENIED. (Written Opinion) Signed by Judge Wilhelmina M. Wright on 7/18/2022. (RJE)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Matthew Nagel et al.,

Case No. 18-cv-1053 (WMW/ECW)
Plaintiffs,
ORDER

v.
United Food and Commercial Workers
Union, Local 653,
Defendant.
Before the Court is Plaintiffs’ motion for review of the Clerk of Court’s March 25,
2022 cost judgment. (Dkt. 252.) For the reasons addressed below, the Court denies the
motion.
BACKGROUND
This dispute arises from a March 4, 2018 collective bargaining agreement (CBA)
negotiated between Defendant United Food and Commercial Workers Union, Local 653
(Local 653) and SuperValu Cub Foods and other independent grocers (collectively,
Grocers). Under the CBA, a subset of employees of the Grocers lost the opportunity to
receive a valued pension benefit plan. Plaintiffs consist of several Local 653 union
members who were on track to receive the pension benefit plan at issue. Local 653
serves as the sole and exclusive bargaining agent for meat and food market employees of
the Grocers.
Plaintiff Matthew Nagel commenced this action on April 19, 2018. The operative
complaint alleged that Local 653 breached its duty of fair representation and violated the

Labor-Management Reporting and Disclosure Act. The Court granted in part Local
653’s motion to dismiss the amended complaint in March 2019. Nagel’s sole remaining
claim asserted breach of the duty of fair representation by bad-faith conduct. In May
2021, the parties stipulated to the intervention of 31 individuals alleging the same claim
against Local 653 as Nagel. The Court granted summary judgment to Local 653 on
Plaintiffs’ remaining claim on January 18, 2022. On March 25, 2022, the Clerk of Court
entered a cost judgment in favor of Local 653. Plaintiffs now move for review of the
taxation of costs.
ANALYSIS
Plaintiffs seek review of the $8,064.25 that Local 653 claimed, and the Clerk of
Court allowed, for transcript fees. Those costs represent transcripts for 13 depositions.
The prevailing party in a federal civil action is entitled to costs, except in cases in which
either a federal rule, statute, or court order provides otherwise. Fed. R. Civ. P. 54(d)(1).
“A prevailing party is presumptively entitled to recover all of its costs.” In re Derailment
Cases, 417 F.3d 840, 844 (8th Cir. 2005). The losing party bears the burden to establish
that an award of costs is inequitable under the circumstances. Concord Boat Corp. v.
Brunswick Corp., 309 F.3d 494, 498 (8th Cir. 2002).
A judge or clerk of court may tax as costs “[f]ees for printed or electronically
recorded transcripts necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). “But
before awarding such costs, the court should determine that transcripts were not obtained
primarily for the convenience of parties but were necessary for use in the
case.” Dindinger v. Allsteel, Inc., 853 F.3d 414, 431 (8th Cir. 2017) (internal quotation

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marks and alterations omitted). “The determination of necessity must be made 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 v. Lindbergh Sch. Dist.,
121 F.3d 356, 363 (8th Cir. 1997) (internal quotation marks and alteration omitted). The
“underlying inquiry is whether the depositions reasonably seemed necessary at the time
they were taken.” Id. (internal quotation marks omitted). “The most direct evidence of
necessity is the actual use of a transcript in a court proceeding,” but the costs of a
transcript not used in a court proceeding “may still be taxable when the deposition
appeared reasonably necessary to the parties at the time it was taken.” Ryther v. KARE
11, 864 F. Supp. 1525, 1534 (D. Minn. 1994).
Plaintiffs do not object to the transcript fees for the depositions Local 653 took of
Plaintiffs Shawn Moore and Matthew Nagel, nor do Plaintiffs object to the transcript fees
for the depositions Plaintiffs took of non-parties Tracy McDonald and Keith Rodewald.
Plaintiffs first argue that Local 653 is not entitled to transcript fees for the six
depositions Plaintiffs took of Local 653’s agents or employees: Amber Allen, David
Blitzstein, Paul Crandall, Jessica Hayssen, Matthew Utecht, and Rena Wong. Plaintiffs
contend that Local 653 received a free copy of these transcripts because Local 653
asserted its right to have its witnesses read and sign the deposition transcript. But
Plaintiffs provide no support for their contention that Local 653 received free copies of
these transcripts as a result of its assertion of its right to read and sign. And Local 653
provides invoices for each of the disputed transcripts, which suggests that Local 653 was
required to pay for a copy of each transcript.

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Plaintiffs also contend that Local 653 received complete copies of these transcripts
from Plaintiffs during class-certification proceedings. But, as Local 653 observes, a court
determines whether a transcript was necessary based on the facts known at the time of the
deposition. See Zotos, 121 F.3d at 363. The depositions at issue were taken in December
2019 and January 2020. Each invoice that Local 653 submitted is dated a few weeks
after the deposition to which it relates. Class-certification proceedings did not begin until
June 2020. The prospect of receiving a complete copy of the transcript during motion
practice was not known when Plaintiffs took the depositions of Local 653’s agents and
employees. And Plaintiffs offer no support for their argument that these transcripts were
not necessarily obtained for use in litigation. “The most direct evidence of necessity is
the actual use of a transcript in a court proceeding.” Ryther, 864 F. Supp. at 1534. Here,
the parties listed these deponents as individuals likely to have discoverable information
relevant to the parties’ claims and defenses, which supports a finding that these
depositions were necessary when they were taken. And the parties submitted and relied
on transcripts of these depositions to address Local 653’s motion for summary judgment.
On this record, Plaintiffs have not demonstrated that the depositions of Local 653’s
agents or employees were not necessary at the time they were taken, nor have Plaintiffs
established that taxing costs for the deposition transcripts is inequitable under the
circumstances. The Clerk of Court properly taxed the transcript fees associated with the
deposition transcripts of Local 653’s employees and agents.
The Court also should reverse taxation of the transcript fees for Gabriella Riccio,
Plaintiffs argue, because neither party filed her deposition transcript with the Court. As

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addressed above, a court determines whether a deposition is necessarily obtained based
on the facts known at the time of deposition. See Zotos, 121 F.3d at 363. And although
the most direct evidence of necessity is use in a court proceeding, an unused transcript
“may still be taxable when the deposition appeared reasonably necessary to the parties at
the time it was taken. Ryther, 864 F. Supp. at 1534. Here, in their initial disclosures,
both Plaintiffs and Local 653 listed Riccio, a member of the bargaining committee that
negotiated the 2018 CBA, as a person who might have discoverable information
supporting Plaintiffs’ claims and Local 653’s defenses.

Plaintiffs assert only that,

although Riccio’s “testimony may have been relevant, there is no indication that her
testimony was ‘necessarily obtained for use in the case,’ and at best the deposition was
‘investigatory in nature.’ ” Plaintiffs do not explain why Riccio’s deposition, which
Plaintiffs took, was relevant but not necessary. Because Plaintiffs have not met their
burden to prove that taxation of the cost of Riccio’s deposition transcript was inequitable
given the circumstances, the Clerk of Court properly taxed the cost of Riccio’s deposition
transcript.
Plaintiffs also maintain that the Court should reverse the taxation of costs for the
deposition transcripts of Amber Allen, Paul Crandall, Rob Kurak, and Gary Munns
because Local 653 did not submit these deposition transcripts in support of its motion for
summary judgment. As addressed above, the most direct evidence of necessity is use in a
court proceeding. See id. In light of their use in the summary judgment proceedings,
these depositions and resulting transcripts were reasonably necessary regardless of which
party submitted the transcripts to the Court. Plaintiffs also contend that it is inequitable

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for the Court to tax these transcripts as costs because Plaintiffs provided complete copies
of these transcripts as part of its opposition to summary judgment. But necessity is
determined at the time the deposition was taken, see Zotos, 121 F.3d at 363, and Plaintiffs
offer no evidence in support of their contention that the transcripts were unnecessary
simply because they may not have been necessary later in the litigation. Plaintiffs have
not met their burden of demonstrating that taxing these deposition transcript fees as costs
is unequitable under the circumstances.
ORDER
Based on the foregoing analysis and all the files, records and proceedings herein,
IT IS HEREBY ORDERED that Plaintiffs’ motion to review costs, (Dkt. 252), is
DENIED.
Dated: July 18, 2022

s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge

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