Nichols et al v. Tillman

Filing 143

ORDER granting in part and denying in part 138 Motion with Objections to Defendant's Bill of Costs; denying 141 Defendant's Motion to Amend Bill of Costs Signed by Honorable David C. Bramlette, III on 2/15/2013 (PL)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
CHERRIS NICHOLS, WIFE OF, INDIVIDUALLY
AND ON BEHALF OF THE DECEDENT
DONALD ALTON NICHOLS, AND JAMIE NICHOLS
V.

PLAINTIFFS

CASE NO. 5:11-cv-00010-DCB-JMR

BARRY TILLMAN, JR., M.D.

DEFENDANT
ORDER

This cause is before the Court on Plaintiffs’ Motion with
Objections to Defendant’s Request for Costs [docket no. 138] and
Defendant’s Amended Motion for Bill of Costs [docket no. 141]. The
Court construes Defendant’s Motion as a motion for leave to amend
the original bill of costs. To the extent that the Defendant has
added costs not contained in his first Bill, the Court will not tax
them against the Plaintiffs because the Defendant has not shown
good cause why he did not include the additional costs in his first
Bill. See Local Uniform Civil Rule 54(c) (providing that “the
prevailing party . . . must file the bill of costs not later than
thirty days after entry of judgment”). Accordingly, the Court need
only to address the Plaintiffs’ objections and the Defendant’s
response.
ANALYSIS
A. Costs for Service and Subpoena
The Defendant originally stated that he incurred $235 for
costs for service and subpoena. The Plaintiffs object to this
amount because he did not submit any documentation to verify it. In

response to the Show Cause Order, the Defendant reduced the amount
to $225 and provided documentation to support this reduced amount.
See Ex. 2, 3. The Court has reviewed the documentation and finds
that the Defendant is entitled to costs for service and subpoena in
the amount of $225. Therefore, the Court will reduce the amount
originally assessed in the Bill of Costs by $10 to reflect this
adjustment.
B. Costs for Witness Fees
The Defendant originally stated that he incurred $709.11 in
costs for witness fees. The Plaintiffs object to this amount
because they believe that the Defendant (1) is not entitled to
collect costs associated with Dr. Hamison’s deposition testimony
and (2) cannot be reimbursed for two days of witness fees for Dr.
Farrell

since

Defendant

he

amended

only
his

testified
costs

to

one

day.1

$662.00.

In

But

response,
the

new

the

amount

continues to include Dr. Hamison’s deposition attendance fee and
the costs for two days of Dr. Farrell’s attendance at trial. Thus,
the Plaintiffs’ objections must be addressed.
As for Dr. Hamison’s deposition attendance fee, as a general
matter, deposition attendance fees are recoverable under 28 U.S.C.
§

1821(b).

While

the Plaintiffs

1

do

cite

authority

for

their

Presumably, Plaintiffs’ counsel spoke with Defendant’s
counsel out of court about how the costs were calculated because
the Bill of Costs and the record did not initially reflect how the
Defendant arrived at the amount taxed against the Plaintiffs.
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position that Dr. Hamison’s attendance fee is not recoverable, see
Morris v. Carnathan, 63 F.R.D. 374, 378 (N.D. Miss. 1974), the
Fifth Circuit has subsequently suggested that their position is
incorrect to the extent that it conflicts with the general rule
that “prevailing parties are entitled to recover the costs of
original depositions and copies . . . [which are] necessarily
obtained for use in the case.” Fogleman v. ARAMCO (Arabian American
Oil Co., 920 F.2d 278, 286 (5th Cir. 1991) (internal quotation
marks omitted) (citing Morris—the case cited by the Plaintiffs—as
a case that has “disagreed” with the general rule). To be specific,
the Fifth Circuit stated that “[i]f, 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.” Fogleman, 920 F.2d at 286.
Although the Plaintiffs argue that Dr. Hamison was not a
“necessary witness,” see Pl.s’ Objs. at 4, they have not convinced
the

Court

that

Dr.

Hamison’s

deposition

was

not

necessarily

obtained for use in this case, even in the absence of a counterargument from the Defendant. Dr. Hamison treated the decedent
shortly before his death and his testimony, from the Defendant’s
perspective, could have had some bearing on the trial. Even though
the Court weighed the relevance of Dr. Hamison’s testimony before
trial and ultimately decided against its admissibility, the Court
can only conclude that Dr. Hamison’s deposition “could reasonably

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be expected to be used for trial preparation.” Fogleman, 920 F.2d
at 286. Therefore, his attendance fee of $40 was properly awarded
to the Defendant and the Plaintiffs’ objection to that fee will be
denied.
As for Dr. Farrell’s two-day presence at the trial, this time
the Court is not in a position to make a factual finding based on
its knowledge of the trial or the record. The Plaintiffs dispute
that it was necessary for Dr. Farrell to attend both days of trial.
The Defendant counters that “Defendants, in an attempt to speed the
Defendant’s case in chief brought Dr. Farrell to trial, but were
unable to put him on the witness stand and Dr. Farrell was present
on two days of trial.” Def.’s Response at 3. This response gives
the Court no indication, however, whether Dr. Farrell’s attendance
on the first day was necessary. For example, it does not indicate
whether Dr. Farrell was in a position to commute to his residence.
See Breazeale By and Through Breazeale v. Smith, 857 F.2d 258, 26061 (5th Cir. 1998). The Defendant’s good-faith attempt to expedite
the trial is insufficient to overrule the Plaintiffs’ objection,
and therefore Dr. Farrell’s attendance fee will be reduced to $40,
and his subsistence fee will be halved to $84.50.2
C. Costs for Copies and Materials

2

The Defendant relies on the federal per diem allowance to
arrive at Dr. Farrell’s subsistence costs. He does not provide any
other documentation. The Plaintiffs have not disputed that Dr.
Farrell is entitled to some subsistence fee, therefore, the Court
halves Dr. Farrell’s fee to sustain the Plaintiffs’ objection.
4

The Defendant originally stated costs of $848.18 for copies
and materials. The Plaintiffs object because the Defendant provided
no documentation to support these costs. Further, the Plaintiffs
state that the Defendant, in order to support their costs for
photocopies, should produce: (1) a general description or label
identifying the document, (2) the number of pages in the document,
(3) the number of sets of documents copied, (4) the total number of
pages copied, (5) the price per copy, and (6) the total photocopy
charges. In response, the Defendant attempts to amend the amount
for

these

costs

to

$920.69—and

increase

from

the

original

amount—and provides a fairly detailed description of the costs
incurred for copies and other materials. Ex. 12.
Having reviewed the documentation provided by the Defendant,
the

Court

is

satisfied

that

he

has

produced

sufficient

documentation to support the assessment of the amount contained in
the original Bill of Costs. As stated at the outset, however, the
Defendant has not sought leave of Court to amend the Bill of Costs.
The Court will not penalize the Plaintiffs for objecting to the
Bill of Costs in a timely manner by imposing upon them a greater
amount than originally was taxed for costs, particularly since the
Defendant has not shown good cause why he omitted these additional
costs in his first Bill. Accordingly, the Court finds that the
Plaintiffs’ objection is denied as to the costs for copies and
materials, but the Court will not assess the additional amount

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contained in the Defendant’s “Amended Bill of Costs.”
D. Costs for Transcript Fees
Finally, the Defendant seeks transcript costs in the amount of
$1,433.45.

The

Plaintiffs

object

to

these

costs

because

the

Defendant produced no supporting documentation. In response, the
Defendant has produced documentation to support this amount. Exs.
4, 5, 6, 7. Therefore, the Plaintiffs’ objection to the assessment
of these costs is denied.
RECALCULATION
The Defendant has conceded that the costs for services and
subpoenas should be reduced by $10 and the costs for witness fees
should be reduced by $47.11. Additionally, the Court has concluded
that the costs for witness fees should be reduced by $125.50
because the Defendant has not proven that he is entitled to costs
for Dr. Farrell’s first-day attendance. Finally, for the reasons
discussed

above,

the

Court

will

subtract

this

amount

from

$3,225.74, which is the amount of Defendant’s original Bill of
Costs. Accordingly, the new amount for the Defendant’s recoverable
costs is $3,043.13.
IT IS THEREFORE HEREBY ORDERED THAT the Plaintiff’s Objections
to the Defendant’s Bill of Costs are SUSTAINED IN PART AND
OVERRULED

IN

PART.

IT

IS

FURTHER

HEREBY

ORDERED

THAT

Defendant’s Amended Motion for Bill of Costs [docket no. 141],
construed by this Court as a motion for leave to file an
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amended bill of costs, is DENIED. IT IS FURTHER HEREBY ORDERED
THAT costs are taxed in the amount of $3,043.13 against the
Plaintiffs and the Court’s original taxation of costs entered
on July 11, 2012 [docket entry no. 139] is hereby WITHDRAWN.
So ORDERED, this the 15th day of February 2013.

/s/ David Bramlette
UNITED STATES DISTRICT COURT

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