Stanley v. Cottrell, Inc.
OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion for Bill of Costs is granted. IT IS FURTHER ORDERED that the Clerk of the Court shall tax costs in favor of Defendant in the amount of $11,171.92.1 216 Signed by District Judge Henry E. Autrey on 2/10/14. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
) Case No. 4:10CV1505 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for New Trial, [Doc.
No. 217], Defendant’s Motion for Bill of Costs, [Doc. No. 216] and Defendant’s
Motion to Strike Plaintiff’s New Arguments and Evidence in Support of Plaintiff’s
Motion for New Trial, [Doc. No. 233]. For the reasons set forth below, the Motion
for New Trial is denied. Defendant’s Motion for Bill of Costs is granted.
Defendant’s Motion to Strike is denied as moot.
Plaintiff requests that the Court grant a new trial pursuant to Rule 59 of the
Federal Rules of Civil Procedure. Rule 59(a) provides: “The court may, on motion,
grant a new trial on all or some of the issues—and to any party—... after a jury
trial, for any reason for which a new trial has heretofore been granted in an action
at law in federal court....” Fed.R.Civ.P. 59(a)(1)(A). Rule 59(a) has been explained
In evaluating a motion for a new trial pursuant to Rule 59(a), “[t]he
key question is whether a new trial should [be] granted to avoid a
miscarriage of justice.”
McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1400 (8th Cir.1994). A new
trial is appropriate when the trial, through a verdict against the weight of the
evidence or legal errors at trial, resulted in a miscarriage of justice. White v. Pence,
961 F.2d 776, 780 (8th Cir.1992). However, legal errors must adversely and
substantially impact the moving party's substantial rights to warrant relief.
Fed.R.Civ.P. 61. “Each case must be reviewed within the framework of its
distinctive facts.” Wilmington v. J.I. Case Co., 793 F.2d 909, 922 (8th Cir.1986)
(citing Hollins v. Powell, 773 F.2d 191, 197 (8th Cir.1985)).
“In determining whether or not to grant a new trial, a district judge is not free
to reweigh the evidence and set aside the jury verdict merely because the jury could
have drawn different inferences or conclusions or because judges feel that other
results are more reasonable.” King v. Davis, 980 F.2d 1236, 1237 (8th Cir.1992)
(citing White, 961 F.2d at 780). “[T]he ‘trial judge may not usurp the function of a
jury ... [which] weighs the evidence and credibility of witnesses.’ “ White, 961 F.2d
at 780 (quoting McGee v. S. Pemiscot Sch. Dist., 712 F.2d 339, 344 (8th
Cir.1983)). “Instead, a district judge must carefully weigh and balance the evidence
and articulate reasons supporting the judge's view that a miscarriage of justice has
occurred.” King, 980 F.2d at 1237. “The authority to grant a new trial ... is
confided almost entirely to the exercise of discretion on the part of the trial court.”
Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980).
Plaintiff argues that he should be granted a new trial because he claims
Defendant’s counsel elicited verifiably false testimony from its expert. This
argument is without merit in that the expert’s testimony was indeed consistent with
his deposition testimony regarding the maximum width of the rig.
Plaintiff also argues that Instruction 18 was improper. Plaintiff made no
objection during the instruction conference. “To preserve alleged errors in the jury
instructions, a party must make a specific objection that distinctly states the matter
objected to and the grounds for the objection.” Lopez v. Tyson Foods, Inc., 690
F.3d 869, 875 -876 (8th Cir. 2012).
Moreover, the instruction correctly states the law with regard to Plaintiff’s
negligence claim based on product defect. As Defendant argues, the instruction
was given immediately after Plaintiff’s negligence claim based on product defect
and repeats the elements of the verdict director for Plaintiff’s negligence claim
based on product defect. This basis for new trial is therefore overruled.
Plaintiff has not provided sufficient reasons to support his request for a new
trial. Therefore, the motion for new trial will be denied.
Bill of Costs
Plaintiff objects to the bill of costs based on his motion for new trial.
Because the new trial motion is denied, these objections are overruled as moot.
a. Fees for Service of Process: With respect to the specific item objections,
Defendant concedes Plaintiff’s objection to the cost of private process servers.
Defendant has abandoned its request for these fees.
b. Transcript and Video Costs. The applicable Eighth Circuit law allows
transcripts and video costs:
While the applicable iteration of § 1920 does not specifically
authorize video-deposition costs, Federal Rule of Civil Procedure
30(b)(3)(A) authorizes video depositions as an alternative to
traditional stenographic depositions, which § 1920 does authorize.
See 28 U.S.C. § 1920 (2006); Fed.R.Civ.P. 30 (“Unless the court
orders otherwise, testimony may be recorded by audio, audiovisual, or
Several other circuits have held that expenses associated with video
depositions are recoverable. See Little v. Mitsubishi Motors N. Am.,
514 F.3d 699, 701 (7th Cir.2008) (per curiam) (stating that courts
may tax video-deposition expenses as costs under § 1920); see also
Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1477 (10th
Cir.1997). (“[W]e hold section 1920(2) implicitly permits taxation of
the costs of video depositions.”); Morrison v. Reichhold Chems., Inc.,
97 F.3d 460, 464-65 (11th Cir.1996) ( “[W]e hold that, when a party
notices a deposition to be recorded by nonstenographic means, or by
both stenographic and nonstenographic means, and no objection is
raised at that time ... it is appropriate under § 1920 to award the cost
of conducting the deposition in the manner noticed.”); see also 28
U.S.C.A. § 1920(2) (2008) (“A judge or clerk ... may tax as costs ...
[f]ees for printed or electronically recorded transcripts necessarily
obtained for use in the case.”).
We agree with our sister circuits that the costs of video depositions
are included under § 1920.
Craftsmen Limousine, Inc. v. Ford Motor Co., 579 F.3d 894, 897 (8th Cir. 2009).
The transcripts will be taxed as costs.
c. Witness fees: witness fees are taxable costs. They will be allowed
d. Copy costs: Fees for exemplification and the costs of making copies of
any materials where the copies are necessarily obtained for use in the case.” 28
U.S.C. §1920(4). Copy costs will be allowed.
IT IS HEREBY ORDERED that Defendant’s Motion for Bill of Costs is
IT IS FURTHER ORDERED that the Clerk of the Court shall tax costs in
favor of Defendant in the amount of $11,171.92.1
Dated this 10th day of February, 2014.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
This amount reflects a reduction of $1,282.50 by reason of Defendant’s abandonment
of Service of summons and subpoena fees.
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