Lee et al v. Borders et al

Filing 145

MEMORANDUM AND ORDER; IT IS HEREBY ORDERED that Plaintiffs' Bill of Costs and Supplemental Bill of Costs (Docket Nos. 118 and 136 ) are Granted in part and Denied in part. The costs are taxed against Defendant in the amount of $10,126 as set forth above. IT IS FURTHER ORDERED that Plaintiff's Motion for Attorney's Fees, Supplemental Motion for Attorney's Fees, and Supplemental Motion for Attorney's Fees, (Docket Nos. 114 118 and 133 ) are DENIED WITHOUT PR EJUDICE subject to refiling one consolidated Motion for Attorney's Fees after the Court enters a ruling on Defendant's Motion for Judgment Notwithstanding the Verdict, or, in the Alternative, for a New Trial. Signed by Magistrate Judge Terry I. Adelman on 03/29/2013. (DJO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANGELA MARIE LEE, By and Through
Next Friend, RENEE B. LEE,
Plaintiffs,
v.
ALBERT LEE BORDERS,
Defendant.

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No. 4:09CV1977 TIA

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Supplemental Bill of Costs and Motions for
Attorney’s Fees. Defendant has filed objections.
I.

Background

Plaintiffs originally filed suit against Defendants Albert Lee Borders, St. Charles Habilitation
Center, and the Missouri Department of Mental Health in the Circuit Court of St. Charles County in
a three-count petition. On December 3, 2009, Defendants St. Charles Habilitation Center and
Missouri Department of Mental Health removed the case to federal court on the basis that Counts
II and III are brought under 42 U.S.C. § 1983 for alleged deprivation of Plaintiffs’ right under the
Fourth, Fifth, and Fourteenth Amendments. On November 19, 2010, the undersigned granted
Defendants St. Charles Habilitation Center and Missouri Department of Mental Health’s Motion to
Dismiss.
On April 12, 2012, the jury returned a verdict in favor of Plaintiff Angela Marie Lee on each
of her claims against Defendant Borders and awarded a total of $1,000,000.00 in compensatory
damages and $3,000,000.00 in punitive damages. Plaintiffs timely filed a Bill of Costs and

Supplemental Bill of Costs in the total amount of $19,432.08. These costs include $4,200.00 in fees
for exemplification and copies necessarily obtained for use in the case; $94.00 fees of Clerk; $345.00
fees for witnesses; $1,184.74 fees for service of summons and subpoena; and $13,535.94 in other
costs. In support of the Bill of Costs, Plaintiffs have submitted invoices and various copies of receipts
and copies of canceled checks. (Docket No. 136). The Bill of Costs is also accompanied by the
declaration of Timothy Smith affirming that the expenses claimed were necessarily incurred in this
action and that the services for which fees have been charged were actually and necessarily
performed.
II.

Legal Standard

Recovery of costs in the district court is generally governed by statute and the Federal Rules
of Civil Procedure. See 28 U.S.C. § 1920; Fed. R. Civ. P. 54(d). Although there is a presumption
of awarding costs to the prevailing party, the district court has substantial discretion in awarding
costs.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 762 (8th Cir. 2006).
Not all costs are taxable against the losing party. Under 28 U.S.C. § 1920, allowable costs
are limited to the following:
(1) Fees of the Clerk and Marshal;
(2) Fees for printed or electronically stored transcripts
necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court-appointed experts, compensation of
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interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.
It is well settled that district courts are “bound by the limitations” established by section 1920, and
costs not listed under that section are not taxable. See Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 437, 444-45 (1987).
Because judgment the Court entered in their favor, Plaintiffs are the prevailing party in this
litigation and are entitled to reimbursement for their costs as set out in section 1920. After reviewing
Plaintiffs’ Bill of Costs and Supplemental Bill of Costs together with the exhibits in support, the Court
concludes that some of the listed charges are not taxable under section 1920, and so the undersigned
will deny in part Plaintiffs’ motion in the amount requested.
II. Discussion
At the outset, the undersigned notes that Plaintiffs have voluntarily agreed to withdraw the
requested late fee of $10 from the Research Fees dated September 12, 2011, the $10.00 parking
ticket fee dated November 1, 2011, the $17.31 fee for reimbursement of batteries, and the $30.001
requested for the services of Jamie DeRousse.
A. Fees for Exemplification and Copies of Papers
Plaintiffs request $4,200.00 for exemplification and copying charges. Plaintiffs fail to submit
any documents in support of the requested fee. In a Note, Plaintiffs state as follows: “$0.35 is the
agreed upon contractual expense per copy. All copies were necessary for the furtherance of the
instant case and not duplicative. The fair estimate is 24 reams of paper were dedicated to the

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The undersigned notes that the amount requested appears to be $60, not $30.
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instant case, as counting reams of paper was more efficient than individual pieces. This estimate does
not include certain medical records that were provided by Opposing Counsel.”
“Copying costs are only taxable if the copies were ‘necessarily obtained for use in the case.’”
St. Louis Convention & Visitors Comm’n v. NFL, 1998 U.S. Dist. LEXIS 22219, at *11 (E.D. Mo.
Sept. 14, 1998) (quoting 28 U.S.C. § 1920). If the copies are made for the convenience of the
prevailing party or his attorney, the costs of making those copies are not taxable. Id. at *12. “The
absence of entries describing what documents were photocopied, and for what purpose, prohibits the
Court from weighing in on the necessity of the photocopying and exemplification charges.” Freedom
Mortg. Corp. v. Burnham Mortg., Inc., 2008 WL 4534162, *1 (N.D. Ill. 2008); see also Droste v.
Julien, 2006 U.S. Dist. LEXIS 28317, at *6 (E.D. Mo. Apr. 27, 2006).
The documentation provided by Plaintiffs does not supply the Court with sufficient
information to determine whether the amount claimed for copying is reasonable and taxable. The
blanket assertion in the note only indicates that the copies were necessary and not duplicative but
does not indicate whether the copies were obtained for the convenience of the Plaintiffs or their
counsel. The submission of an affidavit that affirms in a general way that the expenses listed were
necessarily incurred in the defense in the case is not an adequate substitute for providing appropriate
documentation. See e.g. Standard Communications, Inc. v. U.S., 106 Fed. Cl. 165 (2012) (“As the
prevailing party alone knows the purpose of the copies, it cannot simply make unsubstantiated claims
that copies of the documents were necessary.”).
Plaintiffs’ request for copies made in-house will be disallowed for lack of documentation.
Plaintiffs have provided no information concerning the types of documents which were copied in
house. The documentation submitted in support of these copy costs is inadequate for the Court to
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conduct a meaningful review of these items. See Yaris v. Special Sch. Dist. of St. Louis County, 604
F. Supp. 914, 915 (E.D. Mo. 1985), aff’d, 780 F.2d 724 (8th Cir.), cert. denied, 476 U.S. 1172
(1986). In the absence of such information, the Court may disallow these expenses. Id. Accordingly,
Plaintiffs are not entitled to recover $4,200.00 for exemplification and copies.
B. Postage and Faxes
Courts may award costs not specifically enumerated in 28 U.S.C. § 1920, but must exercise
“sparingly” their discretion to do so. Farmer v. Arabian American Oil Co., 379 U.S. 227, 235 (1964).
Postage is not an item included under § 1920 and many courts, including the Eighth Circuit, choose
not to award these costs to prevailing parties. See Smith v. Tenet Health System SL, Inc., 436 F.3d
879 (8th Cir. 2006) (section 1920 does not authorize taxing the losing party with the prevailing
party’s postage and delivery expenses); Hollenbeck v. Flastaff Brewing Corp., 605 F. Supp. 421
(E.D. Mo. 1985) (postage expenses are to be considered “out-of-pocket expenses” and not “costs”
under § 1920); see also Avirgan v. Hull, 705 F. Supp. 1544, 1546 (S.D. Fla. 1989); Doe v. Rumsfeld,
501 F. Supp. 2d 186, 195 (D.D.C. 2007); Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir.
1996). Likewise, the Eighth Circuit has held that such expenses as long distance, fax, messenger
services, and express mail are out-of-pocket expenses and not taxable items of cost under § 1920.
See Pinkham v. Camex, Inc. 84 F.3d 292, 294-95 (8th Cir. 1996) (holding expenses such as long
distance, fax, messenger services, and express mail are out-of-pocket expenses and not items os cost
under § 1920). Inasmuch as Plaintiffs seek to recover fees for postage and handling, shipping and/or
courier service and faxes, such costs are not properly taxable. Smith v. Tenet Healthsystem SL, Inc.,
436 F.3d 879 (8th Cir. 2006) (“28 U.S.C. § 1920 does not authorize taxing a party for postage and
delivery expenses.”); B.W.A. v. Farmington R-7 Sch. Dist., Cause No. 4:06cv1691JCH, Docket No.
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50 at p. 3 (March 17, 2009). Because these expenses are not recoverable, Plaintiffs’ Bill of Costs will
be reduced by $22.81, the amount of the various charges for postage and handling and $71.50, the
amount of the various charges for faxes.
C. Mediation Costs and Fees
Plaintiffs also request they be awarded other costs including mediation costs and mediation
out of pocket cost (lunch). Neither of these costs are provided for under the categories set forth in
28 U.S.C. § 1920. Finan v. Good Earth Tools, Inc., 2008 WL 1805639, at *11 (E.D. Mo. 2008);
Brisco-Wade v. Carnahan, 297 F.3d 781, 782 (8th Cir. 2002); Martin v. State Farm Mut. Auto. Ins.
Co., No. 4:96cv1179CAS (E.D. Mo. June 2, 1998) (a mediator’s fees are not an item of taxable cost
under 28 U.S.C. § 1920).2 Accordingly, the Court declines to award Plaintiffs $1,002.96 for costs
associated with mediation and lunch.
D. Fees for Witnesses
Plaintiffs seek ths sum of $345.00 in connection with witness fees. Five witnesses, Nicole
Shelton, Norine Koch, Mildred Lutes, Gary Schefler, and Richard Bland, were each paid witness fees
in the amount of $69.00. 28 U.S.C. § 1821(b) provides “[a] witness shall be paid an attendance fee
of $40 for each day’s attendance.” The Court finds Plaintiffs are entitled to costs for these five
witnesses in the amount of $40.00 each. Morissey v. County Tower Corp., 568 F. Supp. 980, 982
(E.D. Mo. 1983). Accordingly, costs for fees and disbursements for witnesses will be taxed in the
amount of $200.00.

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Furthermore, this Court’s local rules provide that absent other agreement or ordered by
the Court, each party will bear its own cost of mediation. See E.D. Mo. Local Rule 6.03(C)(1).
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E. Deposition Costs
Plaintiffs seek a total of $1,164.10 for transcripts costs, postage and handling, copying
exhibits, and/or court reporter attendance fees incurred in the depositions of the following witnesses:
Gary Scheffler ($389.00, $380.00 for copy of transcript , $7.00 postage and handling, and $2.00 for
copying exhibits), Renee B. Lee ($289.40, $257.40 for copy of transcript, $25.00 for condensed
transcript, and $7.00 for postage and handling), Dr. Dan Weinstein ($206.70, $195.70 for copy of
transcript, $4.00 for copying exhibits, and $7.00 for postage and handling), and Officer Derek
Piasecki ($279.00, $234.00 for the original and one copy, $37.50 for the attendance of reporter, and
$7.50 for delivery).
The Court has broad discretion to tax costs of depositions that are reasonably necessary to
the case and that were not taken purely for investigative purposes. Zotos v. Lindbergh Sch. Dist.,
121 F.3d 356, 363 (8th Cir. 1997); Slagenweit v. Slagenweit, 63 F.3d 719, 720 (8th Cir. 1995).
Absent specific objections that depositions were improperly taken, “deposition costs will be taxed as
having been necessarily obtained for use in the case within the meaning of 28 U.S.C. § 1920.” Meder
v. Everest & Jennings, Inc., 553 F. Supp. 149, 150 (E.D. Mo. 1982) (internal quotations and citation
omitted). The Court finds, given the role of the persons deposed in the events underlying the action,
that the deposition costs for which Plaintiffs seek reimbursement were reasonably and necessarily
incurred for use in the case. Id. Plaintiffs, however, have provided no information regarding the need
for the condensed transcript, and therefore, the cost of the $25.00 condensed transcript will be
denied. Further, the Court will reduce the amount requested by $28.50, the amount of the various
charges for postage and handling. Accordingly, costs for transcripts costs, postage and

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handling, copying exhibits, and/or court reporter attendance fees incurred in the depositions will be
taxed in the amount of $1,110.60.
F. Process Server Fees
Plaintiffs seek a total of $1,084.74 in connection with fees paid to process servers other than
the United States Marshals as follows: $100.00 to Peter & Paul Community Services; $600.00 to
David Pearson3; $160.00 to Cole County Sheriff; $21.78 to St. Francois County Sheriff; $40.00 to
Callaway County Sheriff, $67.28 and $59.68 to A-1 Private Investigations, LLC, and $36.00St. Louis
County. Only United States Marshal's fees for service are taxable as costs, and costs associated with
the use of a special process server are not allowed. See Crues v. KFC Corp., 768 F.2d 230, 234 (8th
Cir. 1985) (holding a prevailing party may not recover costs related to the use of a special process
server); see also Exec. Air Taxi Corp. v, City of Bismarck, 2006 WL 3544386, at *2 (D.N.D. Nov.
7, 2006) (noting that although the role of the federal marshal in civil lawsuits has been diminished
since the Eighth Circuit’s decision in Crues, district courts remain bound by that decision). Although
some other courts have declined to follow the Crues decision, this Court is bound to follow Eighth
Circuit precedent.

See, e.g., E.E.O.C. v. W & O, Inc., 213 F.3d 600, 624 (11th Cir. 2000).

Accordingly, the costs paid to process severs other are not taxable as costs, and therefore, the Court
will not award such costs.

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The Court notes that Plaintiffs inadvertently listed the fee as $700.00, but the check
reflects payment in the amount of $600.00.
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G. Expert Fees
Plaintiffs seek a total of $9,835.00 in connection with expert witness fees paid to Dr. Daniel
Weinstein and Shirley Schaper. This cost will be taxed pursuant to 28 U.S.C. § 1920. The Court will
award $9,835.00 for the cost of expert witnesses.
H. Fees to the Clerk
Plaintiffs seek $94.00 as fees to the Clerk, but the Court notes that Plaintiffs listed $91.00 as
the amount of the filing fee in the circuit court. This cost will be taxed pursuant to 28 U.S.C.
§1920(1). The Court will award $91.00 for the cost of filing their lawsuit.
F. Other Costs
Plaintiffs also request they be awarded costs for medical records fees, research fees (Verdict
Reporter), police report retrieval fees, parking fees for April 9-12, 2012, research fees (PACER),
parking fees, and fees of Jaime DeRousse. None of these costs are provided for under the categories
set forth in 28 U.S.C. 1920. See Standley, et al. v. Chilhowee R-IV Sch. Dist., et al., 5 F.3d 319, 325
(8th Cir. 1993) (holding “computer-aided research, like any other form of legal research, is a
component of attorneys’ fees and cannot be taxed as an item of cost in addition to the attorneys’ fee
award.”). Plaintiffs cite no Eighth Circuit authority in support of these items of cost. Likewise, for
lack of documentation, the Court will not allow Plaintiffs’ costs for Jamie DeRousse and the parking
fees for April 9-12, 2012.
To summarize, the Court will order taxed the following costs:
Fees for witnesses:

$200.00

Fees of the Clerk:

$91.00

Expert Fees:

$9,835.00
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In conclusion, the Court will grant in part and deny in part Plaintiffs’ Supplemental Bill of
Costs. Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Bill of Costs and Supplemental Bill of Costs
(Docket Nos. 118 and 136) are Granted in part and Denied in part. The costs are taxed against
Defendant in the amount of $10, 126 as set forth above.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Attorney’s Fees, Supplemental
Motion for Attorney’s Fees, and Supplemental Motion for Attorney’s Fees, (Docket Nos. 114, 118,
and 133) are DENIED WITHOUT PREJUDICE subject to refiling one consolidated Motion for
Attorney’s Fees after the Court enters a ruling on Defendant’s Motion for Judgment Notwithstanding
the Verdict, or, in the Alternative, for a New Trial.

/s/Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE

Dated this

29th

day of March, 2013.

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