Multiplan, Inc. et al v. Holland et al

Filing 374

ORDER granting in part and denying in part 348 Motion ; denying 358 Motion to Strike Signed by District Judge Louis Guirola, Jr on 03/06/2020 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
MULTIPLAN, INC., and PRIVATE
HEALTHCARE SYSTEMS, INC.
v.

PLAINTIFFS/
COUNTERDEFENDANTS
CAUSE NO. 1:14CV315-LG-RHW

STEVEN W. HOLLAND, doing
business as Physical Therapy
Clinic of Gulfport

DEFENDANT/
COUNTERCLAIMANT

MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION FOR DISALLOWANCE OF
COSTS AND DENYING MOTION TO STRIKE RESPONSE
AND ATTACHMENTS IN OPPOSITION
BEFORE THE COURT are the [348] Motion for Disallowance of Costs and
the [358] Motion to Strike Response and Attachments filed by the plaintiffs/counterdefendants, Multiplan, Inc. and Private Healthcare Systems, Inc. The parties have
fully briefed the Motions. After reviewing the submissions of the parties, the record
in this matter, and the applicable law, the Court finds that the Motion for
Disallowance of Costs should be granted in part and denied in part and that the
Motion to Strike should be denied. Holland’s recoverable costs are reduced to
$4710.90.
BACKGROUND
This lawsuit arose out of a dispute between Holland, a physical therapist,
and two preferred provider organizations (PPOs), PHCS and Multiplan. Holland
entered into a “PHCS Participating Professional Agreement” with PHCS, which had
an effective date of September 1, 2006. PHCS and Multiplan alleged that Holland

engaged in tortious interference with business relations by contacting their insurer
clients. Holland filed several claims against PHCS and Multiplan, asserting that
these entities failed to provide steerage, or direction, of patients to Holland’s
physical therapy clinic. This Court granted judgment as a matter of law, thus
dismissing the claims PHCS and Multiplan filed against Holland as well as most of
the claims Holland filed against PHCS and Multiplan. The Court conducted a jury
trial as to Holland’s only remaining claim for breach of contract. A jury found that
PHCS and Multiplan breached the Agreement by failing to provide patient direction
to Holland’s physical therapy clinic. Pursuant to the parties’ stipulation as to the
amount of contractual damages, this Court entered a [291] Judgment awarding
Holland $14,329.25. This Court granted judgment as a matter of law and set aside
the jury verdict. The Fifth Circuit reversed this Court’s decision and reinstated the
jury’s verdict. Holland filed a bill of costs seeking $9420.21 in costs. PHCS and
Multiplan filed the present [348] Motion asking the Court to disallow the costs
sought by Holland. They also filed a [358] Motion asking the Court to strike
Holland’s response and supporting exhibits as untimely.
DISCUSSION
I. MOTION TO STRIKE RESPONSE AND ACCOMPANYING EXHIBITS
PHCS and Multiplan ask the Courts to strike Holland’s response to their
Motion for Disallowance of Costs as well as exhibits filed in support of Holland’s
response. PHCS and Multiplan filed their Motion for Disallowance of Costs on
October 10, 2019. Under this Court’s Local Rules, Holland’s response and exhibits

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were due fourteen days later, on October 24, 2019. See Uniform Local Rule 7(b)(4).
Holland’s [354] Response was filed nineteen minutes late, at 12:19 a.m. on October
25, 2019. Holland’s exhibits were filed ten hours late, at 10:00 a.m. on October 25,
2019. The Court is interested in reaching the merits of this dispute and will not
strike these pleadings on a technicality, particularly where the response and
exhibits were filed at a time so near the deadline. As a result, the Motion to Strike
filed by PHCS and Multiplan is denied.
II. MOTION FOR DISALLOWANCE OF COSTS
Holland seeks the following costs: $936 for fees of the clerk; $4185 for fees for
service of summons and subpoenas; $3659.99 for fees for printed or electronically
recorded transcripts necessarily obtained for use in the case; $307.09 for fees for
disbursements for printing; $238.32 for fees for exemplification and the costs of
making copies of any materials where the copies are necessarily obtained for use in
the case; and $93.31 for other costs.
Generally, a prevailing party should be allowed to recover its costs. Fed. R.
Civ. P. 54(d)(1). Recoverable costs generally include: (1) fees of the clerk and
marshal; (2) fees for printed or electronically recorded transcripts; (3) fees and
disbursements for printing and witnesses; (4) fees for exemplification and the costs
of making copies; (5) docket fees; and (6) compensation of court appointed experts,
interpreters, and costs of special interpretation services. 28 U.S.C. § 1920.

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A. Fees of the Clerk
Holland seeks to recover the following fees, which he characterizes as fees of
the clerk: Fifth Circuit filing fee $505, two pro hac vice fees totaling $200, and the
Fifth Circuit admission fee for one of Holland’s attorneys, Jack Gordon. (Holland’s
Resp., at 3, ECF No. 354.) Pro hac vice fees are not properly taxable as costs.
Mosley v. Geico Ins. Co., No. 3:13CV161-LG-JCG, 2015 WL 12942082, at *2 (S.D.
Miss. Mar. 17, 2015) (citing 28 U.S.C. § 1920; Smith v. Fresh Cut Floral & Catering,
Inc., No. 3:07-cv-661-WHB-LRA, 2008 WL 4539630, at *2 (S.D. Miss. Oct. 7, 2008)).
Similarly, appellate court admission fees are not included in the costs on appeal
taxable in the district court. See Fed. R. App. P. 39(e). However, the fee for filing a
notice of appeal is recoverable. See id. Therefore, Holland’s request for fees of the
clerk is reduced to $505.
B. Fees for Service of Summons and Subpoenas
The Fifth Circuit has held that the costs of a private process server are not
recoverable under Section 1920, absent exceptional circumstances. Marmillion v.
Am. Int’l Ins. Co., 381 F. App’x 421, 431 (5th Cir. 2010). Holland has not
demonstrated that exceptional circumstances exist that warrant an award of
private process server costs. As a result, Holland is not entitled to recover these
costs.
C. Fees for Printed or Electronically Recorded Transcripts
Necessarily Obtained for Use in the Case
“A deposition is necessarily obtained for use in the case ‘[i]f, at the time the
deposition was taken, a deposition could reasonably be expected to be used for trial
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preparation, rather than merely for discovery.’” Marmillion, 381 F. App’x at 429
(quoting Fogleman v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991)). PHCS and
Multiplan argue that Holland’s request for reimbursement of transcript fees should
be denied because Holland provided insufficient itemization and documentation to
show that the transcripts were necessary for use at trial. Holland provided receipts
along with his response. These receipts show that the depositions were necessary
for use at trial. As a result, Holland is entitled to recover the $3659.99 in transcript
costs he seeks.
D. Fees and Disbursements for Printing
PHCS and Multiplan argue that Holland did not provide sufficient
documentation and itemization to support his request to recover $307.09 for fees
and disbursements for printing. Holland corrected this deficiency when he filed his
response and supporting exhibits. Therefore, Holland is entitled to recover $307.09
for printing costs.
E. Fees for Exemplification and the Costs of Making Copies of Any
Materials Where the Copies are Necessarily Obtained for Use in the
Case
The Court finds that Holland’s request for $238.82 in copying costs is
reasonable and recoverable, particularly considering the protracted nature of this
litigation. The objections of PHCS and Multiplan are overruled to this extent.
F. Other Costs
Holland’s request for binding costs and PACER fees are denied, because these
costs and fees are not recoverable under 28 U.S.C. § 1920. See U.S. ex rel. Long v.

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GSDMIdea City, L.L.C., 807 F.3d 125, 133 (5th Cir. 2015); Kmart Corp. v. Kroger
Co., No. 1:11cv103-GHD-DAS, 2014 WL 3699998, at *8 (N.D. Miss. July 24, 2014).
CONCLUSION
For the foregoing reasons, Holland is entitled to recover the following costs:
$505 for fees of the clerk; $3659.99 for fees for printed or electronically recorded
transcripts necessarily obtained for use in the case; $307.09 for fees and
disbursements for printing; and $238.82 for fees for exemplification and the costs of
making copies of any materials where the copies are necessarily obtained for use in
the case. These costs total $4710.90.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the [348] Motion
for Disallowance of Costs is GRANTED to the extent that Holland’s recoverable
costs are reduced to $4710.90 and DENIED in all other respects.
IT IS, FURTHER, ORDERED AND ADJUDGED that the Clerk of Court
is directed to tax costs against Multiplan, Inc. and Private Healthcare Systems,
Inc., in the amount of $4710.90.
IT IS, FURTHER, ORDERED AND ADJUDGED that [358] Motion to
Strike Response and Attachment filed by the plaintiffs/counter-defendants,
Multiplan, Inc. and Private Healthcare Systems, Inc., is DENIED.
SO ORDERED AND ADJUDGED this the 6th day of March, 2020.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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