National Benefit Programs, Inc. v. Express Scripts, Inc.
Filing
167
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's bill of costs (Doc. No. 157) is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that the Clerk of the Court shall tax the following costs against Plaintiff and in favor of Defendant. SEE ORDER FOR COMPLETE DETAILS. Signed by Honorable Audrey G. Fleissig on 6/19/2012. (KSM)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NATIONAL BENEFIT PROGRAMS,
INC.,
Plaintiff,
v.
EXPRESS SCRIPTS, INC.,
Defendant/
Third-Party Plaintiff,
v.
THE REYNOLDS & REYNOLDS CO.
Third-Party Defendant.
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No. 4:10CV00907 AGF
MEMORANDUM AND ORDER
Plaintiff National Benefit Programs, Inc.’s (“NBP”) action for breach of contract,
unjust enrichment, and promissory estoppel to recover commissions allegedly owed it by
Defendant Express Scripts, Inc., (“ESI”) came before the Court on motions for summary
judgment. In accordance with the Memorandum and Order issued on December 30,
2011, (Doc. No. 152), partial summary judgment was entered in favor of Defendant ESI
and against Plaintiff NBP. (Doc. No. 153.) Thereafter, the parties reached a settlement of
the remaining issues in this matter.
On January 20, 2012, Defendant filed a bill of costs (Doc. No. 157) in the amount
of $21,773.77, which includes $400 for pro hac vice admission, $315 for service of
summons, $20,394 for fees of the court reporter, $41.51 for fees for witnesses, $528.26
for fees for exemplification and copies of papers, and $35 for docket fees. Plaintiff
objects to the bill of costs in its entirety and also makes specific objections to certain
items in it. (Doc. No. 163.) Upon consideration of the briefs submitted and for the
reasons set forth below, the proposed bill of costs will be granted in part and denied in
part.
Applicable Law
Pursuant to Fed. R. Civ. P. 54(d)(1), “[u]nless a federal statute, these rules, or a
court order provides otherwise, costs–other than attorney’s fees–should be allowed to the
prevailing party.” Under the Rule, a “prevailing party is presumptively entitled to recover
all of its costs.” 168th and Dodge, LP v. Rave Reviews Cinemas, LLC, 501 F.3d 945, 958
(8th Cir. 2007) (quotation omitted). Only the expenses enumerated in 28 U.S.C. § 19201
or other statutory authority may be taxed as “costs” under Rule 54(d). Smith v. Tenet
Healthsystem SL, Inc., 436 F.3d 879, 889-90 (8th Cir. 2006) (citing Crawford Fitting Co.
v. J.T. Gibbons, Inc., 482 U.S. 437, 441-442 (1987)). Within the statutory framework,
the Court has broad discretion to determine and award costs as appropriate in a given
case. Blakley v. Schlumberger Tech. Corp., 648 F.3d 921, 930 (8th Cir. 2011); Little
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Section 1920 provides: A judge or clerk of any court of the United States may tax as
costs the following: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically
recorded 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
interpreters, and salaries, fees, expenses, and costs of special interpretation services under
section 1828 of this title.
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Rock Cardiology Clinic PA v. Baptist Health, 591 F.3d 591, 601 (8th Cir. 2009) (noting
that district courts have broad discretion over the award of costs to a prevailing party).
The taxation of costs under Rule 54(d) is permissive, but there is a strong
presumption favoring an award of costs to the prevailing party. See Thompson v.
Wal-Mart Stores, Inc., 472 F.3d 515, 517 (8th Cir. 2006). To rebut the presumption that
the prevailing party is entitled to recover all of its costs, a district court must provide a
rationale for denying the prevailing party’s claim for costs. Id. (citing cases).
Verification Requirements
Plaintiff first contends that Defendant’s bill of costs is invalid because it was filed
on an “outdated” form and failed to satisfy the affidavit requirement under 28 U.S.C. §
1920. Defendant initially submitted a “declaration” rather than a sworn affidavit, but
subsequently supplemented the initial filing by submitting a sworn affidavit from the
attorney of record with its reply brief. Defendant asserts that its supplemental filing was
unnecessary, however, as the original declaration satisfied the requirements of § 1920.
The Court need not address that issue as the affidavit in the supplemental filing satisfies
the requirements of § 1920. If Defendant had not provided a sworn affidavit in its reply,
the Court could have required it to do so. See Alexander Mfg., Inc. Employee Stock
Ownership & Trust v. Illinois Union Ins. Co., 688 F. Supp. 2d 1170, 1176 (D. Or. 2010)
(allowing prevailing party to amend its bill of costs to include a sworn affidavit).
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Fees of the Clerk
Defendant seeks to recover certain costs categorized as fees of the clerk, specifically
the pro hac vice admission fees in the amount of $400. Plaintiff opposes this request,
asserting that there are “plenty of attorneys admitted to practice law in . . . Ohio that were
capable and competent to represent ESI.” Plaintiff’s objection will be denied. Under Eighth
Circuit law, pro hac vice fees are recoverable, and the availability of other counsel in a
particular forum does not alter this conclusion. See Craftsman Limousine, Inc. v. Ford
Motor Co., 579 F.3d 894, 898 (8th Cir. 2009). Accordingly, the costs related to pro hac vice
admissions will be allowed.
Deposition Costs
Defendants seek court reporter, videographer and stenographic transcription fees in
the amount of $20,394 related to the depositions of nine/10 witnesses. Plaintiff objects
generally to the deposition costs asserting that they were not “necessary” expenses within
the meaning of the statute, were incurred six to nine months prior to trial, and were not used
in pretrial proceedings. This argument is without merit. Transcription fees and other costs
related to deposition may be awarded if the deposition was “necessarily obtained for use in
a case and was not purely investigative,” even if the deposition was not used at trial. Smith,
436 F.3d at 889 (holding that the underlying inquiry in deciding whether to award deposition
costs is whether the depositions reasonably seemed necessary at time they were taken)
(internal citation omitted) (quoting Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 363 (8th Cir.
1997)). That neither the videotapes nor many of the deposition transcripts were actually used
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in relation to Defendant’s motion for summary judgment will not by itself bar an award of
costs, because at the time of the depositions, it was reasonable to believe that depositions of
these witnesses would be necessary at trial. See Smith, 436 F.3d at 889. For this reason,
Plaintiff’s general objection to Defendant’s recovery of costs with respect to each of the
depositions will be denied.
Plaintiff next objects to an award of costs with respect to the depositions of two
witnesses, Donald Bell and Janice Houseman, former employees of Reynolds & Reynolds,
the third-party Defendant, on the grounds that these depositions were not reasonably
necessary to resolve the issues in the case. The Court cannot agree. Due to the complex
nature of this litigation, the integral role of the Third-Party claim in the dispute, and the
Plaintiff’s own identification of these witnesses as persons with knowledge concerning his
claims, the Court concludes that at the time these depositions were taken Defendant properly
determined that they were reasonably necessary for the resolution of this litigation. Therefore
the costs for the stenographic transcription of these depositions will be allowed. See Euro
Tyres Corp. v. SK Mach. Corp., 5:08CV2953, 2010 WL 411236, *2 (N.D. Ohio Jan. 28,
2010) (awarding costs for depositions of employees of third party defendant).
Plaintiff further asserts that Defendant may not recover fees for both stenographic and
videographic transcription of the depositions. Section 1920(2), as amended, provides that
the Court may tax as costs “[f]ees for printed or electronically recorded transcripts necessarily
obtained for use in the case[.]” (emphasis supplied). The Eighth Circuit has determined that
videography costs are recoverable under § 1920, but has not specifically addressed the issue
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of whether costs for both stenographic and video recording of depositions should be allowed
in a single case. See Craftsmen Limousine, Inc., 579 F.3d at 897; see also E.E.O.C. v.
Hibbing Taconite Co., CIV 09-729 RHK/LIB, 2010 WL 4237318, *2 n. 5 (D. Minn. Oct. 21,
2010) (noting that Craftsmen Limousine “held that video-deposition costs may be taxed, but
it did not address whether both stenographic and video transcript costs are taxable for one
deposition.”). District courts addressing the issue have generally held that the statute permits
recovery of costs for either stenographic transcription or video-recording of depositions, but
not both. MEMC Elec. Materials, Inc. v. Sunlight Group, Inc., 4:08CV535 FRB, 2012 WL
918743, *2-3 (E.D. Mo. Mar. 19, 2012); Clark v. Baka, 4:07-CV-477-DPM, 2011 WL
2881710, *3-4 (E.D. Ark. July 19, 2011); Hibbing Taconite Co., 2010 WL 4237318, *2-3;
Am. Guar. & Liab. Ins. Co. v. U.S. Fid. & Guar. Co., 4:06CV655RWS, 2010 WL 1935998,
*2 (E.D. Mo. May 10, 2010); Thomas v. Newton, No. 4:07CV556AGF, 2009 WL 1851093,
*3 (E.D. Mo. June 26, 2009); but see Farnsworth v. Covidien, Inc., 4:08CV01689 ERW,
2010 WL 2160900, *2 (E.D. Mo. May 28, 2010) (allowing costs for video depositions on the
general ground that video depositions provide a separate basis for recovery.)
Courts do allow recovery of costs for both stenographic transcription and video
recording of depositions but only where the prevailing party offers a persuasive reason for
obtaining the video deposition. Compare E.E.O.C. v. CRST Van Expedited, Inc,
07-CV-95-LRR, 2010 WL 520564, * 19 (N.D. Iowa Feb. 9, 2010) (vacated on other grounds)
(denying costs for videotaping of depositions where prevailing party had not offered a
persuasive reason for both stenographic and video recording of every deposition) with Lewis
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v. Heartland Inns of Am., L.L.C., 764 F. Supp. 2d 1037, 1048 (S.D. Iowa 2011)
(distinguishing CRST, and agreeing with the prevailing party that “videotaping this particular
deposition was reasonably necessary because [the witness]’s appearance was relevant to the
issues raised . . .”); see also Clark v. Baka, 2011 WL 2881710, *3-4 (allowing the prevailing
party to recover the costs of stenographic transcription, but denying costs for 12 of 13 video
depositions requested noting that the “helpfulness” of video recordings does not establish
their necessity for purposes of an award of costs)
In this case, Defendant has not offered or demonstrated a persuasive or particular
reason to support its assertion that it was reasonably necessary to videotape any of the
depositions at issue. Defendant merely states that the costs of video deposition should be
allowed, because “it was necessary for ESI’s trial preparation to obtain video deposition
testimony.” Defendant has not asserted a particular reason, such as the importance of the
witness and the likelihood that each witness would be unavailable for trial, that might have
provided a basis for the award of video deposition costs. The Court therefore declines to
award both types of deposition costs in this circumstance. The Court will therefore deny
Defendant’s request for costs related to the video recording of depositions. On the basis of
the forgoing, the Court concludes that Defendant may recover $11,487.25, for all costs
attributable to the stenographic recording and transcription of the 10 depositions taken by
Defendant.
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Exemplification and Copying Fees
Defendant seeks $548.26 for copying costs associated with obtaining Plaintiff’s
medical, social security, and employment records. Plaintiff objects on the ground that the
copying fees sought at $.10 per sheet are excessive and were not actually incurred by
Defendant because the copies were made “in-house” and not by a copying service. In support
of its objection, Plaintiff offers an affidavit from its Office Manager asserting that “sheets of
paper cost less than a cent.” In response, Defendant asserts that $.10 per sheet reflects the
contracted rate that ESI is charged.
A prevailing party need only demonstrate that fees for services such as copying were
reasonable, not that they were performed at the cheapest possible rate. Copying fees of as
much as $.15 have been found reasonable. Porter v. McDonough, No. 092536, 2011 WL
821181,* 3 (D. Minn. Mar. 2 ,2011) (copying costs of $.15/page found reasonable) (citations
omitted). Accordingly, costs for exemplification and copying in the amount of $548.26 will
be allowed.
IT IS HEREBY ORDERED that Defendant’s bill of costs (Doc. No. 157) is
GRANTED in part and DENIED in part.
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IT IS FURTHER ORDERED that the Clerk of the Court shall tax the following costs
against Plaintiff and in favor of Defendant:
Fees of the Clerk:
Deposition Expenses:
Copying Expenses:
Witness Fees:
Docket Fees:
$
400.00
$ 11,487.25
$
548.26
$
41.51
$
35.00
TOTAL:
$ 12,512.02
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 19th day of June, 2012.
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