Nesbit v. West Bolivar School District

Filing 165

CLERK OF COURT'S MEMORANDUM OPINION AND ORDER ADJUDICATING CONTESTED BILL OF COSTS. Signed by the Clerk of the Court on 2/20/14. (jtm)

FILED

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION

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LEORY DONALD NESBIT
PLAINTIFF
CIVIL ACTION NO.: 2:09-CV-156-MPM

VS.

DEFENDANT

WEST BOLIVAR SCHOOL DISTRICT

CLERK OF COURT'S MEMORANDUM OPINION AND ORDER ADJUDICATING

CONTESTED BILL OF COSTS

1.

For the reasons stated below, costs are taxed against the Plaintiff in favor of the
Defendant in the sum of$I,611.40 for the items appearing in the following table:
Item

Allowed

Fees to Serve Subpoena
Fees of the Clerk
Fees of the Court Reporter

$ 150.00
$ 450.00
$ 1,461.40

$ 150.00
$
00.00
$ 1.461.40

TOTAL
2.

Claimed

$ 2,061.40

$1,611.40

The jury heard this case from January 28, 2013 to January 31, 2013, and it determined

Defendant was not liable to Plaintiff as to any claim.. The final judgment in this case found
"defendant, West Bolivar School District recover of the plaintiff, Leroy Donald Nesbit, its cost of
action." (See docket entry no. 148). On March 2, 2013, Defendant filed a Motion for Bill of
Costs, seeking to recover $2,061.40 in costs associated with this action. On March 18,2013,
Plaintiff submitted its objections to Defendant's Bill of Costs. This matter is now ripe for
review.

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3.

Plaintiff objects to Defendant's Bill of Costs on two grounds. First, Plaintiff maintains

that because Defendant did not call Robinson as a witness, the charge to Keith Investigations for
serving Robinson should not be taxed. Second, Plaintiff argues that the $450.00 charged to
Plaintiff for costs on appeal to the Fifth Circuit is inappropriate.· Plaintiff does not object to the
other charges included therein.

4.

Federal Rule of Civil Procedure 54(d) provides that costs other than attorney's fees shall

be allowed as of course to the prevailing party unless the court otherwise directs. Defendant is
clearly the prevailing party in this matter and as such is entitled to recover the costs associated
with defending this action. The Court specifically awarded Defendant the costs of the action, and
Plaintiff's objections are granted in part and denied in part.

5.

Specific Items of Costs

A.

Fees to Serve Subpoena.
Plaintiff argues that defendant did not call Robinson as a witness because he could not be

helpful to defendant's case. Defendant, however, claims that Robinson was subpoenaed to
authenticate documents that were objected to by Plaintiff in the Pre-trial Order. At the trial in this
matter, Plaintiff withdrew his objection to the documents, but the subpoena, and the costs
associated with service of the subpoena, were already incurred. Therefore, Plaintiff's objection to
the $150.00 paid to Keith Investigation is overruled and will be taxed as a cost.
B.

Fees of the Clerk

1

The charge is actually $455.00 but that does not affect the analysis in regards to the Bill

of Costs.
2

Defendant also seeks to tax $450.00 in transcript fees paid to this Court for appeal to the
Fifth Circuit. Plaintiffs objection to this cost is well-taken and therefore it should not be
included in the Bill of Costs. The Judgment of the Fifth Circuit filed October 4, 2011 dismissed
Defendant Kemp's appeal and stated "that defendant-appellant pay to plaintiff-appelle the costs
on appeal to be taxed by the Clerk of this Court." Therefore, it is inappropriate for this court to
now grant the costs to Defendant.
6.

I award Defendant $1,611.40 for the costs of this action. On motion served within seven

days, this Order may be reviewed. Fed. R. Civ. P. 54(d)(1).
Date: February2.~2014

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CERTIFICATE OF SERVICE
I hereby certify that this Clerk ofCourt's Memorandum Opinion and Order Adjudicating
Contested Bill ofCosts was served on February 't.o, 2014 via the Court's Electronic Case Filing
System, on all parties registered to receive notices electronically_

Date: February ZD, 2014

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