Green v. Logan's Roadhouse, Inc. et al
Filing
128
MEMORANDUM OPINION AND ORDER denying as moot 121 Motion to Clarify; denying as moot 125 Motion to Strike; overruling in part and sustaining in part Plaintiff's objections [120, 123] to Defendant's Bill of Costs 119 . Signed by District Judge Keith Starrett on 5/7/2015 (scp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
PHILLIPPI GREEN
PLAINTIFF
V.
CIVIL ACTION NO. 2:13-CV-238-KS-MTP
LOGAN’S ROADHOUSE, INC.
DEFENDANT
MEMORANDUM OPINION AND ORDER
For the reasons below, the Court denies Plaintiff’s Motion to Strike [125] as
moot, overrules in part and sustains in part Plaintiff’s objections [120, 123] to
Defendant’s Bill of Costs [119], and denies Plaintiff’s Motion for Clarification [121] as
moot. Plaintiff is hereby taxed $4,946.64 of Defendant’s requested costs.
District Courts have “broad discretion in taxing costs . . . .” Brazos Valley
Coalition for Life, Inc. v. City of Bryan, 421 F.3d 314, 327 (5th Cir. 2005). Pursuant to
statute, the Court may tax a variety of costs, including fees for printed or electronically
recorded transcripts necessarily obtained for use in the case, fees and disbursements
for printing and witnesses, fees for exemplification and the costs of making copies of
any materials where the copies are necessarily obtained for use in the case, and docket
fees. 28 U.S.C. § 1920. “Before any bill of costs is taxed, the party claiming any item
of cost or disbursement shall attach thereto an affidavit, made by himself or by his duly
authorized attorney or agent having knowledge of the facts, that such item is correct
and has been necessarily incurred in the case and that the services for which fees have
been charged were actually and necessarily performed.” 28 U.S.C. § 1924.
A.
Motion to Strike [125]
Defendant initially failed to include an affidavit in support of its Bill of Costs
[119], as required by 28 U.S.C. § 1924. Plaintiff objected to taxation of costs on that
basis [120, 121, 123], and Defendant attached an affidavit in its reply [124-2] to
Plaintiff’s objection. Plaintiff responded with a Motion to Strike [125] the affidavit,
arguing that Defendant is now procedurally barred from providing it.
Any requirement of a sworn affidavit under United States law may be satisfied
“with like force and effect” by an unsworn declaration subscribed as true under penalty
of perjury. 28 U.S.C. § 1746. On the Bill of Costs [119], Defendant’s attorney signed an
unsworn declaration which contains language mirroring that provided in Section 1746:
“I declare under penalty of perjury that the foregoing costs are correct and were
necessarily incurred in this action and that the services for which fees have been
charged were actually and necessarily performed.” Therefore, according to 28 U.S.C.
§ 1746, the declaration satisfies 28 U.S.C. 1924's affidavit requirement. See Trammell
Real Estate Corp. v. Trammell, 748 F.2d 1516, 1518 (11th Cir. 1984) (district court
abused discretion by requiring separate affidavit where counsel provided an unsworn
declaration under penalty of perjury); Bittakis v. City of El Paso, 2007 U.S. Dist. LEXIS
49127, at *5-*6 (S.D. Tex. June 28, 2007).1 Accordingly, the Court denies Plaintiff’s
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The Court additionally notes that it has the discretion to permit Defendant
to cure its initial failure to provide an affidavit. See Morrissey v. County Tower
Corp., 568 F. Supp. 980, 981 (E.D. Mo. 1983); Streicher v. Hous. Auth. of Savannah,
2008 U.S. Dist. LEXIS 43335, at *2 n. 1 (S.D. Ga. June 3, 2008). Plaintiff has
provided no reason why Defendant should not be permitted to supplement its initial
application for costs.
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Motion to Strike [125] as moot.
B.
Deposition Transcripts
Plaintiff objects to Defendants’ application for the costs of deposition transcripts.
The Fifth Circuit provided the following summary of the law governing recovery of
costs of deposition transcripts:
[P]revailing parties are entitled to recover the costs of original depositions
and copies under 28 U.S.C. § 1920(2) and § 1920(4) respectively, provided
they were “necessarily obtained for use in the case.” Although some
courts have disagreed, we have consistently held that a deposition need
not be introduced into evidence at trial in order to be “necessarily
obtained for use in the case.” If, at the time it was taken, a deposition
could reasonably be expected to be used for trial preparation, rather than
merely for discovery, it may be included in the costs of the prevailing
party. Similarly, a deposition copy obtained for use during trial or for
trial preparation, rather than for the mere convenience of counsel, may
be included in taxable costs. Whether a deposition or copy was necessarily
obtained for use in the case is a factual determination to be made by the
district court.
Fogleman v. ARAMCO, 920 F.2d 278, 285-86 (5th Cir. 1991) (citations, punctuation,
footnotes omitted). According to Defendant’s invoices [124-1], it purchased an original
transcript of the following depositions: Phillippi Green, Kelly Davis, and Tammy
Hoadley. It also purchased a copy of the following depositions: Gigi Beard, Leslie Perez,
Joseph McClendon, James Griffin, Felix Cheatum, Selena Green, Rhonda Brown,
Charlie Bradley, Dr. Geralyn Datz, Dr. Brian Humphreys, Dr. Lynn Bell, and John
Tisdale.
First, Plaintiff argues that Defendant is not permitted to recover the cost of
copies of transcripts taken by Plaintiff. This objection is without merit. The Fifth
Circuit has specifically held that “a deposition copy . . . may be included in taxable
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costs.” Fogleman, 920 F.2d at 286. Here, the invoices indicate that Defendant
purchased one copy of each transcript. Some were original transcripts of depositions
taken by Defendant, and some were copies of transcripts taken by Plaintiff. Whether
the transcript was taken by Defendant or Plaintiff is irrelevant to its necessity or
usefulness; Defendant could reasonably be expected to use a transcript in preparation
for trial regardless of who noticed and conducted it.
Next, Plaintiff argues that Defendant failed to demonstrate that the deposition
transcripts were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). This
objection is also meritless. Defendant provided an affidavit from its counsel [124-2]
attesting that the transcripts were “necessarily incurred in this case.” Defendant relied
upon the transcripts of the depositions of Phillippi Green [58-1], Gigi Beard [58-3],
John Tisdale [58-4], Kelly Davis [66-1], and Leslie Perez [95] in various motions. See
Brazos Valley, 421 F.3d at 328 (where depositions were incorporated as evidence on
summary judgment, district court did not abuse discretion in awarding court reporter
fees).
Additionally, the Pretrial Order [110] identified Phillippi Green, Selena Green,
Rhonda Browne, Joseph McClendon, Felix Cheatum, Kelly Davis, Gigi Beard, Tammy
Hoadley, James Griffin, Leslie Perez, John Tisdale, Dr. Geralyn Datz, Dr. Brian
Humphreys, Dr. Lynn Bell, and Charlie Bradley as potential witnesses at trial. Of
these, Selena Green, Rhonda Browne, Dr. Geralyn Datz, Dr. Lynn Bell, and Dr. Brian
Humphreys were designated to testify by deposition. Phillippi Green, Felix Cheatum,
Gigi Beard, Leslie Perez, Joseph McClendon, James Griffin, Tammy Hoadley, John
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Tisdale, and Kelly Davis provided live testimony [112, 113], while Selena Green, Dr.
Brian Humphreys, and Rhonda Browne testified by video deposition [112]. Finally,
both Defendant and Plaintiff frequently used deposition transcripts for impeachment
purposes throughout trial.
In summary, the record overwhelmingly demonstrates that the deposition
transcripts were “necessarily obtained for use in the case,” 28 U.S.C. § 1920(2), and
Defendant may recover the full $4,743.50 in costs.
C.
Printing Costs
Among other things, Plaintiff argues that Defendant failed to demonstrate that
its $1,565.99 in copying and printing fees were necessarily incurred for use in the case.
“Before the district court can tax costs for photocopies, it must find that the copies for
which costs are sought were necessarily obtained for use in the litigation. Moreover,
the party seeking such costs must offer some proof of the necessity.” Holmes ex rel.
Estate of Homes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994); see also
Fogleman, 920 F.2d at 286. While it is not necessary “to identify every xerox copy made
for use in the course of legal proceedings,” one must demonstrate “that reproduction
costs necessarily result from that litigation.” Fogleman, 920 F.2d at 286.
Defendant’s “itemization” in briefing [124] does not identify what was copied. It
only provides the dates, numbers of pages, and amount charged. Therefore, the Court
has no way of determining whether the copies were necessarily obtained for use in the
case, and it must sustain Plaintiff’s objection. See id. (where it was impossible to tell
whether the copies were necessarily obtained for use in the case rather than for the
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convenience of counsel, costs should not be taxed).
D.
Witness Fees
Plaintiff objects to Defendant’s application for $2,318.14 of witness fees and
mileage. First, Defendant requests $2,000.00 for the deposition attendance fee charged
by Plaintiff’s expert, John Tisdale. Generally, “expert fees are not recoverable.” Coats
v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993); see also Holmes, 11 F.3d at
64 (party could not recover expert witness fees for trial attendance beyond the travel
costs and fee allowed by statute); Walker v. Borden, Inc., 115 F.R.D. 471, 473 (S.D.
Miss. 1986); Weckesser v. Chi. Bridge & Iron, 1:08-CV-357-LG-RHW, 2011 U.S. Dist.
LEXIS 4216, at *5 (S.D. Miss. Jan. 10, 2011) (limiting expert fees to $40 per day
allowed by statute). Therefore, the Court disallows all but $40.00 of Tisdale’s $2,000.00
fee. See 28 U.S.C. § 1821(b).
As for the remaining witnesses – Leslie Perez, Tammy Hoadley, Kelly Davis, and
Alise Bryant – Plaintiff first argues that Defendant can not obtain their fees and
mileage because they were also subpoenaed by Plaintiff. This objection has no merit.
“Defendant had a right to protect its case at trial,” and it was not obligated to rely upon
Plaintiff to subpoena the witnesses it believed necessary to its case. Pate v. General
Motors Corp., 89 F.R.D. 342, 345 (S.D. Miss. 1981) (permitting witness fees where both
parties subpoenaed the same witnesses).
Next, Plaintiff argues that Defendant can not obtain fees and mileage for Perez,
Hoadley, Davis, and Bryant because Defendant did not call them at trial. Defendant
did, in fact, call Davis as a witness [113]. As for Hoadley and Perez, Defendant
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examined them during Plaintiff’s case in chief [112], and it was presumably
unnecessary to call them again. Id. (allowing witness fees where prevailing party did
not call witnesses, but questioned them during opposing party’s case in chief). Neither
party called Alise Bryant. “The presumption is, absent some reasonable explanation,
that when a witness is subpoenaed to the trial, but is not called to the witness stand,
he is not a necessary witness.” Ill. Cent. R.R. v. Harried, No. 5:06-CV-160-DCB-JMR,
2011 U.S. Dist. LEXIS 9984, at *12 (S.D. Miss. Jan. 25, 2011) (citing Miss. Chem. Corp.
v. Dresser-Rand Co., 2000 U.S. Dist. LEXIS 21965, 2000 WL 33725123, *15 (S.D. Miss.
Sept. 12, 2000)). Defendant provided no explanation for why Bryant was not called at
trial, and the Court presumes that she was not a necessary witness.
For these reasons, the Court disallows the fees and mileage for Alise Bryant, and
it disallows all but $40.00 of the fee charged by John Tisdale. The Court allows the fees
and mileage for Leslie Perez, Tammy Hoadley, and Kelly Davis. Defendant may
recover $203.142 for witness fees and mileage.
E.
Conclusion
For the reasons above, the Court denies Plaintiff’s Motion to Strike [125] as
moot, overrules in part and sustains in part Plaintiff’s objections [120, 123] to
Defendant’s Bill of Costs [119], and denies Plaintiff’s Motion for Clarification [121] as
moot. Plaintiff is hereby taxed $4,946.643 of Defendant’s costs.
2
$2,318.14 (requested amount) – $1,960.00 (Tisdale fee) – $155.00 (Bryant fee
& mileage) = $203.14
3
$4,743.50 (transcripts) + $203.14 (witness fees & mileage) = $4,946.64
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SO ORDERED AND ADJUDGED this 7th day of May, 2015.
s/ Keith Starrett
UNITED STATES DISTRICT JUDGE
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