American Automobile Insurance Company v. Omega Flex, Inc.

Filing 210

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiff's Objections to Defendant's Bill of Costs are GRANTED in part and DENIED in part as set forth herein. (Doc. No. 187.) IT IS FURTHER ORDERED that Defendant is AWARDED � 36;20,606.56 in costs as follows: $ 750.00 Fees of the Clerk....SEE ORDER FOR COMPLETE DETAILS. IT IS FURTHER ORDERED that Plaintiff's request to stay, pending appeal, execution on the taxed bill of costs is DENIED without prejudice as premature. Signed by District Judge Audrey G. Fleissig on 3/12/2014. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
AMERICAN AUTOMOBILE
)
INSURANCE COMPANY, as assignee of )
FRED and ADRIENNE KOSTECKI,
)
)
Plaintiff,
)
)
v.
)
)
OMEGA FLEX, INC.,
)
)
Defendant.
)

Case No. 4:11CV00305 AGF

MEMORANDUM AND ORDER
The jury trial of this product liability action resulted in a verdict for Defendant
Omega Flex, Inc. and against Plaintiff American Automobile Insurance Company, as
assignee of Fred and Adrienne Kostecki. On August 1, 2013, Defendant filed a Bill of
Costs to recover litigation expenses in the amount of $26,218.21.1 Specifically,
Defendant seeks: (1) $750 for fees of the Clerk; (2) $5,412.952 for printed or
electronically recorded transcripts; (3) $6,765.20 for witness fees; and (4) $13,290.06 for
exemplification and the costs of making copies. Plaintiff filed objections to requests for
copying expenses and for certain expenses related to deposition transcripts. In its

1

In Defendant’s response to Plaintiff’s objections to the Bill of Costs, Defendant
withdrew its requests for a $185.17 expense for the delivery, shipping and handling of
deposition transcripts and $158.00 for “CD Depo Litigation Packages.” The Court has
deducted these amounts from the requested total expenses of $26,561.38
2

The relinquished amounts are shown as deductions from the transcript fees of
$5,756.12 that Defendant originally requested.

response to Plaintiff’s objections, Defendant withdrew certain requested costs, and the
Court does not consider the objections related to those costs. For the reasons set forth
below, Plaintiff’s remaining objections are granted in part and denied in part.
APPLICABLE LAW
Federal Rule of Civil Procedure 54 provides that “[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.” Fed. R. Civ. P. 54(d)(1). Under Rule 54, 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) (internal quotation omitted).
However, not every expense is a permissible “cost.” Only the expenses enumerated in 28
U.S.C. § 1920 or other statutory authority may be taxed as “costs” under Rule 54(d).
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441–442 (1987); Smith v. Tenet
Healthsystem SL, Inc., 436 F.3d 879, 889–90 (8th Cir. 2006). “When an expense is
taxable as a cost, however, there is a strong presumption that a prevailing party shall
recover it in full measure.” Concord Boat Corp. v. Brunswick Corp., 309 F.3d 494, 498
(8th Cir. 2002) (internal citations omitted).

Thus, once the prevailing party has

demonstrated that particular costs are statutorily authorized, the unsuccessful party bears
the burden of showing that the costs are somehow improper, and cannot be recovered.
See id.

-2-

DISCUSSION
I. Copying Charges
Pursuant to 28 U.S.C. § 1920, the Court may award copy and exemplification fees
for copies necessarily obtained for use in the case. The Court has broad discretion to
determine which copying expenses are taxable under § 1920, but should reduce or deny
the requested amount if an award would be inequitable under the circumstances. See
Starr Indem. and Liab. Co. v. Cont’l Cement Co., No. 4:11–CV–809 JAR, 2013 WL
3154009, at *2 (E.D. Mo. June 21, 2013). “[C]opy expenses must be documented or
itemized in such a way that the Court can meaningfully evaluate the request.”
Transamerica Life Ins. Co., v. Lambert, No. 4:12-CV-1253 CAS, 2013 WL 328792, at *5
(E.D. Mo. Jan. 29, 2013) (citing Yaris v. Special Sch. Dist. of St. Louis Cnty., 604 F.
Supp. 914, 915 (E.D. Mo. 1985), aff’d, 780 F.2d 724 (8th Cir. 1986)). In addition,
copying costs incurred solely for the convenience of counsel are not recoverable under 28
U.S.C. § 1920. Tanner v. City of Sullivan, No. 4:11–CV–1361 NAB, 2013 WL 3287168,
at *4 (E.D. Mo. June 28, 2013). Courts may exercise discretion to deny copying costs if
it is “impossible to tell to what extent copies charged . . . were necessarily obtained for
use in the case rather than obtained simply for the convenience of counsel.” Dunn v.
Nexgrill Indus., Inc., No. 4:07–CV–01875 JCH, 2011 WL 1060943, at *1 (E.D. Mo. Mar.
21, 2011) (internal quotation omitted).
In support of its Bill of Costs, Defendant submits invoices from various copying
services. See Doc. No. 187-4. Plaintiff asserts that these invoices do not adequately
identify the nature of the documents copied or indicate how the documents were used
-3-

during trial. Upon examination of the submitted documentation, the Court finds that it
contains sufficient detail to permit a meaningful evaluation of the request. See Doc. No.
187-4; see also Betton v. St. Louis Cnty., No. 4:05CV01455 JCH, 2010 WL 1948265, at
*2 (E.D. Mo. May 14, 2010) (internal quotation omitted) (holding that a party seeking
copying costs pursuant to Rule 54(d) “is not expected to provide a detailed description of
every piece of paper copied,” but only “the best breakdown of the copied material
obtainable from its records”). Therefore, Plaintiff’s objection to the copying costs on the
ground of insufficient documentation is denied.
Among the copying costs Defendant seeks to recover are expenses for the
preparation of three-ring binders used in expert witness depositions and dispositive
motion briefing. Plaintiff objects to these costs asserting that the binders were prepared
for the convenience of Defendant’s counsel and were not necessary for use at trial.
Defendant asserts that the expense of the binders used in expert depositions and
dispositive motion briefing is a recoverable cost and not merely a convenience.
Defendant argues, in the alternative, that if these expenses are not recoverable, its
requested award should be reduced by a significantly smaller amount than Plaintiff urges.
The amount of the disputed expenses is not clearly established in the record.
Defendant asserts that they amount to $179.00, apparently representing only the expense
of the three ring binders themselves and not their contents or the cost of their preparation.
See Doc. No. 187-4, pp. 5-6. The Court finds this designation of the binder expenses

-4-

overly formalistic. The Court will consider the entire expense3 documented for the
preparation of the binders used in expert depositions and dispositive motion briefing, and
not merely the empty binders themselves, as the disputed expense. See Doc. No. 197-4,
pp. 1 & 5-6.
Other courts, exercising sound reasoning, have reached differing conclusions on
the issue of whether such expenses are recoverable as costs. Compare O’Brien v. St.
Louis Pub. Sch. Dist., No. 4:10–CV–1094 CDP, 2012 WL 4854698, at *1 (E.D Mo. Oct.
11, 2012) (ruling that binders and exhibit tabs are not a taxable cost under 28 U.S.C. §
1920), and Am. Guar. & Liab. Ins. Co. v. U.S. Fid. & Guar. Co., No. 4:06CV655RWS,
2010 WL 1935998, at *4 (E.D. Mo. May 10, 2010) (denying fees for binders and exhibit
tabs because such costs were for the convenience of the attorneys), with Marez v. SaintGobain Containers, Inc., No. 4:09CV999MLM, 2011 WL 1930706, at *16 (E.D. Mo.
May 18, 2011) (internal quotation omitted) (allowing as a cost the expense for
preparation of similar tabbed binders and noting that these types of materials “‘ease the
witnesses’ testimony and enhance the smooth delivery of the trial to the jury”).
The Court finds the reasoning set forth in Marez persuasive. Although admittedly
more convenient for counsel, the use of such materials at trial and in expert depositions,
also contributes to the cogent presentation of testimony at trial. Therefore, the Court
denies Plaintiff’s objection to the award, as costs, of Defendant’s expenses for the
copying and preparation of all binders used at trial and for expert depositions. See id., at

3

These amounts are $1,110.83 (expert deposition copies and binders) and $546.59
(dispositive motion briefing copies and binders). See Doc. No. 197-4, pp. 1 & 5-6.
-5-

*16. The Court concludes, however, that the materials prepared for dispositive motion
briefing were solely for the convenience of counsel, and will grant Plaintiff’s objection to
the award of those costs. See Tanner, 2013 WL 3287168, at *4; O’Brien, 2012 WL
4854698, at *1.
Plaintiff next asserts that it would be inequitable to award the full amount of
copying expenses because their very volume indicates that all of the expenses were not
necessarily incurred for use in the case. For example, Plaintiff objects to the expenses
Defendant seeks for copying thousands of “blowback” photographs, 4 especially because
Defendant ultimately submitted only 26 such exhibits at trial.
Defendant asserts that the thousands of copies were necessary because Defendant
did not know until the eve of trial how Plaintiff would present its case-in-chief.
Therefore, Defendant argues, it had to copy all of the “blowback” photographs in order to
be prepared for any eventuality. Citing Trip Mate, Inc. v. Stonebridge Cas. Ins. Co.,
Defendant asserts that, on the basis of the facts known at the time, the expenses for the
copies of the “blowback” photographs were reasonable. See Nos. 10-0793-CV-W-ODS,
11-1097-CV-W-ODS, 2013 WL 3336631, at *1 (W.D. Mo. Jul. 2, 2013) (citation
omitted) (holding that the determination of whether or not an expense was reasonably
incurred “should be made in light of the facts known when the expense was incurred”).
Defendant notes that the expenses attributable to copying of the “blowbacks” were
incurred shortly after Plaintiff filed its list of 108 potential trial exhibits. Defendant
4

The disputed expenses are: $197.28, $88.80, $4,575.20, and $2,775.00, totaling
$7,636.28. See Doc. No. 187-4, pp. 9-10.

-6-

asserts that, at that time, it had no way of knowing which of its exhibits and photographs
would be needed to effectively respond to Plaintiff’s case-in-chief.
The Court finds this argument unpersuasive. The statutory language “necessary
for use in the case” exacts some measure of discernment and moderation by the parties.
For this reason, the Court believes it would be inequitable to penalize Plaintiff because
Defendant failed to exercise either with respect to the “blowback” photograph copying
expense.

28 U.S.C. § 1920.

The Court concludes that the copying costs for the

“blowback” photographs are excessive in light of the relatively small number of exhibits
and photographs Defendant ultimately presented at trial. This is not a case where the
disputed expense was incurred early in the litigation when Defendant could not have
known enough about the case to make a reasonable judgment as to which of the
photographs would be needed at trial. Here, the expenses were incurred approximately
two weeks before trial and after this matter had been pending for more than two years.
At that time Defendants should have had, on the basis of discovery and pretrial filings,
sufficient knowledge of Plaintiff’s theory of the case to make a reasonable judgment
regarding which of the thousands of “blowback” photographs it should copy to present at
trial.
The Court recognizes that litigants cannot always anticipate the course of trial
testimony or the evidence the opposing side may present.

Nevertheless, the Court

concludes that here the “disproportionate number of copies made in comparison to the
[26] photographs used at trial” renders an award of the entire amount of the copying costs
for the “blowback” photographs inequitable. See Starr Indem. and Liab. Co., 2013 WL
-7-

3154009, at *2 (finding the requested copying costs inequitable where plaintiff requested
costs for copying thousands of pages of photographs but only utilized ten photographs at
trial). On the record before it, the Court cannot determine with precision how many, or
which, of the copies were excessive, but exercises its discretion on the basis of similar
precedent to reduce the copying costs for the “blowback” photographs by fifty percent.
See id. (reducing, under similar circumstances, a requested award for copying expenses
by fifteen percent).
Plaintiff also objects to Defendant’s request for the expense of copies prepared in
the course of discovery, specifically, document production. Plaintiff asserts that costs
incurred for the copying of documents for discovery purposes are not properly taxable
under 28 U.S.C. § 1920(4). The cases Defendant cites in support of the contrary
proposition do not directly address the issue. See Cruesoe v. MERS/Missouri Goodwill
Indus., No. 4:05CV538 RWS, 2007 WL 188367, at *1 (E.D. Mo. Jan. 23, 2007) (denying
videotape costs from deposition); Katoch v. Mediq/PRN Life Support Servs., Inc., No.
4:04-CV-938CAS, 2007 WL 2434052, at *12 (E.D. Mo. Aug. 22, 2007) (denying
objection that copying costs should be denied because of electronic filing); Litecubes,
L.L.C. v. N. Light Prods., Inc., No. 4:04CV00485ERW, 2006 WL 5700252, at *17 (E.D.
Mo. Aug. 25, 2006) (granting copying costs in case involving electronic filing).
Therefore, the Court will grant Plaintiff’s objection and deny the request for copying
costs incurred for purposes of discovery.5 See Macheca Transp. Co. v. Philadelphia

5

The disputed expenses for the copying of discovery materials are: $165.18; $455.90;
$24.94; $220.80 and $560.00; totaling $1,426.82. See Doc. No.187-4, pp. 5-6. Plaintiff
-8-

Indem. Ins. Co., No. 4:04CV178 (CEJ), 2012 WL 2236702, at *2 (E.D. Mo. June 15,
2012) (denying costs where the prevailing party could not establish that the costs were
necessary for the litigation); see also Emmenegger v. Bull Moose Tube Co., 33 F. Supp.
2d 1127, 1133 (E.D. Mo. 1998) (noting that 28 U.S.C. § 1920(4) does not cover “a
party’s copying of documents to be produced in discovery”).
II. Deposition Transcripts
Pursuant to 28 U.S.C. § 1920(2), the Court may award fees for printed or
electronically recorded transcripts necessarily obtained for use in the case.6 In addition,
any transcript-related expense incurred solely for the convenience of counsel is not
taxable. See Am. Guar. & Liab. Ins. Co., 2010 WL 1935998 at *3.
Plaintiff objects to the requested expense for an expedited transcript of the hearing
on the parties’ motions for summary judgment and exclusion of expert testimony.
Defendant asserts that the short period of time between the ruling on these motions and
deadline for filing of motions in limine made the expense for the expedited transcript
reasonable and necessary.
The Court will deny Plaintiff’s objection to Defendant’s request for the cost of the
expedited transcript. The Court agrees with Defendant’s assertion that the expense was

also objects here to the request for the expense of the preparation of binders for use in
expert depositions. Having concluded above that those expenses were recoverable, the
Court does not include them here. See id.
6

As noted above, Defendant properly withdrew its request for $185.17 in charges
related to the delivery, shipping and handling of deposition transcripts. See Smith, 436
F.3d at 889 (holding that costs for delivery of transcripts are not taxable under § 1920).
-9-

not merely a convenience for counsel but was reasonable and necessary to allow
Defendant to prepare its motions in limine.
III. Summary of Awarded Costs
On the basis of the foregoing, the Court first awards all costs to which Plaintiff has
lodged no objection except for those that Defendant relinquished in its response brief.
With respect to Plaintiff’s objections, the Court denies the objection to an award of
copying expenses on the ground of insufficient documentation. Plaintiff’s objection to an
award of copying expenses for the preparation of binders for use in dispositive motion
briefing is granted. The requested copying costs are reduced by $546.59. The Court also
grants Plaintiff’s objection to an award of copying expenses for “blowback” photographs
for use at trial and reduces the requested copying costs for “blowback” photographs7 by
fifty percent (50%), or $3,818.14. Plaintiff’s objection to an award of copying costs for
documents produced in discovery is also granted and the requested copying costs are
further reduced by $1,426.82. In sum, the request for an award of copying costs in the
amount of $13,290.06 is reduced by a total of $5,791.55 to $7,678.41.
Finally, Plaintiff’s objection to the request for expenses related to an expedited
transcript is denied.

7

The copying costs attributable to the “blowback” photographs were $7,636.28. See
Doc. No. 187-4, pp. 9-10.
- 10 -

IV. Stay of Execution on the Taxed Bill of Costs Pending Appeal
As of the date of this Order, no appeal has been filed in this matter. Therefore,
Plaintiff’s request to stay, pending appeal, execution on the taxed bill of costs is denied as
premature.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Objections to Defendant’s Bill of
Costs are GRANTED in part and DENIED in part as set forth herein. (Doc. No. 187.)
IT IS FURTHER ORDERED that Defendant is AWARDED $20,606.56 in
costs as follows:
$

750.00

Fees of the Clerk

$ 5,412.95

Printed or electronically recorded transcripts

$ 6,765.20

Witness fees

$ 7,678.41

Exemplification and copying costs

$20,606.56

Total Approved Costs

IT IS FURTHER ORDERED that Plaintiff’s request to stay, pending appeal,
execution on the taxed bill of costs is DENIED without prejudice as premature.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 12th day of March, 2014.

- 11 -