Kent v. Vicksburg Healthcare, LLC et al
ORDER granting in part and denying in part 111 Motion Objecting to Bill of Costs. Costs are taxed against Plaintiff in the amount of $7170.05. Signed by Honorable David C. Bramlette, III on 8/13/2012 (PL)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
DEBRA L. KENT
CIVIL ACTION NO. 5:10-CV-195 DCB-RHW
VICKSBURG HEALTHCARE, LLC d/b/a
RIVER REGION MEDICAL CENTER AND
DARLENE WHITE, INDIVIDUALLY AND
IN HER OFFICIAL CAPACITY
OPINION AND ORDER
The cause is before the Court on Plaintiff’s Motion Objecting
considered the Motion, the Defendants’ response thereto, applicable
statutory and case law, and being otherwise fully advised in the
premises, the Court finds and orders as follows:
I. Procedural History
On April 20, 2012, this Court granted summary judgment in
favor of the Defendants and entered a Final Judgment dismissing
prejudice. Shortly thereafter, the Defendants timely filed their
Bill of Costs pursuant to Federal Rule of Civil Procedure 54(d),
and the Clerk taxed costs against Kent in the amount of $7243.55.
Kent concedes that the Defendants, as the prevailing party, are
entitled to costs as enumerated in 28 U.S.C. § 1920, but she
objects that the following costs assessed against her are not
electronically recorded transcripts associated with the depositions
taken in this case, (2) fees for printed transcripts associated
with the Court’s April 11, 2012 hearing, (3) fees for making or
obtaining copies of her prior employment discrimination lawsuit and
Mississippi Department of Employment Security (MDES) file. See 28
U.S.C. § 1920.1
Depositions of Debra Kent, Dr. Veena Shenoy, Darlene White, Hal
Harrington, Vance Reynolds, and Rebecca Columbus
First, Kent objects to paying the Defendants’ costs associated
with her own deposition, as well as the depositions of Dr. Veena
Shenoy, Defendant Darlene White, Hal Harrington, Vance Reynolds,
and Rebecca Columbus, because the Defendants failed to show “what
portions” were actually used in this case. See Pl.’s Objection to
Bill of Costs ¶ 5 (citing S. Surgery Ctr., LLC v. Fid. & Guar.
Ins., 2008 WL 5272093, at *2 (S.D. Miss. Dec. 17, 2008)). As an
initial matter, it is not the law in this jurisdiction that a
deposition were actually used to justify the deposition’s necessity
to the case. The Court in Southern Surgery Center merely stated
that identifying which specific portions of a deposition were used
in the case would have aided it in determining the deposition’s
necessity. Surgery Ctr., LLC v. Fid. & Guar. Ins., 2008 WL 5272093,
at *2 (S.D. Miss. Dec. 17, 2008). The general rule, as stated in
Kent does not object to each cost’s quantum, which is
supported by receipts filed by the Defendants.
Southern Surgery Center, is “to allow the recovery of [an] expense
if the taking of the deposition is shown to have been reasonably
necessary in the light of facts known to the counsel at the time it
was taken.” Id. at *2 (quoting Copper Liquor, Inc. v. Adolph Coors
Co., 684 F.2d 1087, 1099 (5th Cir. 1982), overruled on other
grounds, Int’l Woodworkers of Am., AFL-CIO v. Champion Int’l Corp.,
790 F.2d 1174 (5th Cir. 1986)).
Applying this rule, there is no question that all of the
depositions to which Kent objects were “reasonably necessary” for
use in this case. Id. The Defendants clearly had reason to depose
Kent because she was the plaintiff in this case, see Myers v.
Scales, 2002 WL 31431574, at *1 (S.D. Ind. 2002), and the other
depositions were noticed and taken by Kent, not the Defendants,
making it entirely reasonable for the Defendants to attend the
depositions and request transcripts. Not only were the depositions
reasonable at the time they were taken, the deposition testimony
was, in fact, actually presented to and used by the Court in its
resolution of the case. Kent is well aware that the Court viewed
and considered her video deposition at the summary judgment hearing
held on April 11, 2012, at the United States Courthouse in Natchez,
Mississippi. She is also presumably aware that the Court relied
heavily on the deposition testimony of Dr. Veena Shenoy, Darlene
White, Hal Harrington, Vance Reynolds, and Rebecca Columbus, in its
Memorandum Opinion and Order granting summary judgment to the
Defendants. See generally, Apr. 30, 2012 Order. There is no merit
to Kent’s argument that the transcripts or video/audio recordings
of these depositions were not reasonably necessary,2 and therefore
the Court will deny Kent’s objection to the assessment of these
Transcript of the Evidentiary Hearing
Next, Kent argues that the cost for obtaining a transcript of
the evidentiary hearing is “clearly not recoverable” but provides
no explanation or legal authority to substantiate this conclusory
assertion. See Pl.’s Objection to Bill of Costs ¶ 5. In contrast,
the Defendants explain that (1) they requested the transcript in
the event that the Court needed it and that (2) it was necessary to
obtain a record of new testimony presented at the hearing in
preparation for a possible trial. But they, like Kent, offer no
legal authority for their position.
The Defendants’ first argument can be summarily dismissed
since the Court can obtain a copy of the hearing transcript free of
cost pursuant to the Court Report’s Act. See 28 U.S.C. § 753(b).
But the Defendant’s second argument has merit. In Holmes v. Cessna
Aircraft Company the Fifth Circuit affirmed the district court’s
To the extent that Kent opposes costs associated with her
deposition because it was a video deposition, the Court notes that
28 U.S.C. § 1920(2) was amended in 2008 to specifically provide for
the recovery of “[f]ees for . . . electronically recorded
transcripts.” See, Illinois Cent. R. Co. v. Harried, 2011 WL
283925, at *3 (S.D. Miss. Jan. 25, 2011).
award of costs for daily trial transcripts because they were
necessarily obtained for use in the case. 11 F.3d 63, 64 (5th Cir.
distinction between costs that were incurred “primarily for the
“necessarily obtained for the case.” Id. at 54. Having conducted
the hearing, the Court is cognizant of the fact that a live
witness, Chris Jones, provided new and important testimony to the
Defendants’ case. In fact, the new testimony was referenced in
multiple places in the Court’s Memorandum Opinion and Order. Apr.
30, 2012 Mem. Op. & Order at 28 n.23, 29 n.26. Therefore, the Court
“necessarily obtained for the case” and will deny Kent’s objection
to this cost.
Copy of Prior Lawsuit and Copy of Mississippi Department of
Employment Security File
incurred when they obtained a copy of Kent’s prior employment
discrimination lawsuit against her former employer and also the
Defendants’ procurement of the MDES file for the additional reason
that she provided them with the file during discovery at her
expense. The Defendants primarily argue in response that it was
reasonably necessary to obtain a copy of these records because both
records could have contained testimony that may have been of use in
the case. The Defendants also state that they are not required to
rely on the documents produced by Kent during discovery.
The Court finds merit in Kent’s objection to the retrieval
fee. The Defendants have not convinced this Court that Kent’s prior
employment discrimination lawsuit had any bearing on the case. The
Court understands how obtaining this record could be convenient,
but does not believe this record was necessary to their defense of
this case. Holmes, 11 F.3d at 64. Indeed, it is telling that the
Defendants made no mention to the Court of this prior lawsuit.
Additionally, the Court is persuaded by Kent’s argument that she
should not have to pay for a second MDES file. While it may be true
as a general proposition that a defendant is not required to rely
on documents produced in discovery by the plaintiff, the Defendants
have not come forward with evidence or argument explaining why they
chose not to rely on the file produced by Kent. Because it is not
obvious on principle alone that obtaining a duplicate file was
objection to the assessment of this cost.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion
Objecting to Bill of Costs [docket entry no. 111] is GRANTED IN
PART AND DENIED IN PART. The Court finds that the Defendants are
not entitled to the $45 retrieval fee for a copy of the Plaintiff’s
employment discrimination lawsuit against her prior employer and
the $28.50 copy fee for her MDES file. In all other respects, the
Court denies Kent’s objections. IT IS THEREFORE HEREBY ORDERED THAT
costs are taxed against Plaintiff Debra Kent in the amount of
$7170.05 and included in the judgment.
So ORDERED, this the 13th day of August, 2012.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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