Hemminghaus v. Missouri

Filing 99

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion for Bill of Costs 92 is granted in part and denied in part as set out above. IT IS FURTHER ORDERED that the Clerk of Court shall tax the following costs in favor of the State of Missouri, et al., and against Nadine Hemminghaus: Fees for transcripts necessarily obtained $8,481.74; Witness fees $45.46; Total Taxable Costs $8,527.20. Signed by District Judge Catherine D. Perry on April 10, 2013. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NADINE HEMMINGHAUS,
Plaintiff,
vs.
STATE OF MISSOURI, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 4:11 CV 736 CDP

MEMORANDUM AND ORDER
After I granted summary judgment to the defendants, they submitted a bill of costs
to be taxed against plaintiff Nadine Hemminghaus. As permitted by Local Rule 54–
8.03(A), Hemminghaus filed objections, challenging four specific costs.
Under Rule 54(d), Fed. R. Civ. P., ―costs — other than attorney’s fees —
should be allowed to the prevailing party.‖ Not all litigation expenses qualify as ―costs.‖
The specific costs that are recoverable are set out in 28 U.S.C. § 1920. They include,
among other things, fees for printed or electronically recorded transcripts‖ and fees for
―the costs of making copies of any materials,‖ as long as the transcripts and copies ―are
necessarily obtained for use in the case.‖ The district court has ―substantial discretion in
awarding costs‖ as provided for by Section 1920 and Rule 54(d). Marmo v. Tyson Fresh
Meats, Inc., 457 F.3d 748, 762 (8th Cir. 2006).

I agree with Hemminghaus that the objected-to costs do not fall within any of the
enumerated categories of taxable expenses under 28 U.S.C. § 1920. I will reduce
defendants’ bill of costs accordingly.
Rough transcripts
First, defendants have requested reimbursement for both rough transcripts and
regular transcripts of nine depositions. Hemminghaus objects to paying for both. Under
Section 1920(2), ―fees for printed or electronically recorded transcripts necessarily
obtained for use in the case‖ are recoverable. Because each of these depositions was
taken long before the dispositive motion deadline and the scheduled trial date, I conclude
that rough transcripts were not ―necessarily obtained for use in the case.‖ Therefore, they
are not taxable, and I will reduce the taxed costs by $1,295, the amount charged for the
rough transcripts.1
Videotaped deposition of plaintiff
Second, Hemminghaus objects to paying for both the written transcription and
video recording of her deposition. Although the Eighth Circuit has held that video
recording costs are recoverable under 28 U.S.C. § 1920(2), it has not ruled whether a
prevailing party may recover the cost of both a written transcription and a video
recording for the same deposition. See Craftsmen Limousine, Inc. v. Ford Motor Co.,
579 F.3d 894, 897–98 (8th Cir. 2009).

1

Plaintiff seeks a reduction of $1,289, which reflects an apparent typo in the amount charged for the rough transcript for the
deposition of Hashim Raza.

–2–

This court, however, has repeatedly held that the ―or‖ in Section 1920(2) means
that costs for either ―printed‖ or ―electronically recorded‖ transcripts may be recovered,
but not both. See Thomas v. Newton, 4:07CV556 AGF, 2009 WL 1851093, at *3 (E.D.
Mo. June 26, 2009) (citing United States v. Smith, 35 F.3d 344, 346 (8th Cir. 1994) (―or‖
should ordinarily be read as disjunctive)); see also MEMC Electronic Materials, Inc. v.
Sunlight Grp., Inc., No. 4:08CV535 FRB, 2012 WL 918743, at *5 (E.D. Mo. March 19,
2012); Sportsman v. BNSF Ry. Co., 4:10CV513 TIA, 2011 WL 4528388, at *2 (E.D. Mo.
Sept. 29, 2011); Am. Guar. & Liab. Ins. Co. v. U.S. Fid. & Guar. Co., No. 4:06CV655
RWS, 2010 WL 1935998, at *2 (E.D. Mo. May 10, 2010).
In National Benefit Programs, Inc. v. Express Scripts, Inc., Judge Fleissig noted
that some courts in this circuit have allowed recovery of both costs, ―but only where the
prevailing party offers a persuasive reason for obtaining the video deposition.‖
4:10CV907 AGF, 2012 WL 2326071, at *3 (E.D. Mo. June 19, 2012); see also
Craftsmen, 579 F.3d at 898 (directing plaintiff to be taxed for the cost of video, but
noting that plaintiff ―present[ed] no other argument indicating that the award of the
video-deposition costs was unreasonable or unnecessary‖)). In this case, defendants
have not responded to Hemminghaus’ objections and have not provided any reason that
they should recover the costs of both a written transcript and a video recording of her
deposition. I conclude that video was not necessarily obtained for use in this case, and
therefore, it falls outside Section 1920(2). As such, I will reduce the bill of costs by
$1,262.50, the amount charged for video recording of Hemminghaus’ deposition.
–3–

Per-page charge for James Carroll deposition
Hemminghaus also argues that the full cost of the transcript for the deposition of
James Carroll should not be taxed against her. The defendants were charged $5.75 per
page for Carroll’s deposition transcript, a rate Hemminghaus considers unreasonably
high. She notes that the other transcript fees in this case ranged from $3.35 per page to
$3.75 per page; that the circumstances of Carroll’s deposition were unremarkable; and
that his transcript was prepared by the same court reporting service.
The invoice attached to the defendants’ motion for bill of costs reveals that the
Carroll transcript was ―expedited,‖ which may account for the increased per-page costs.
(See Mot., p. 14.) As stated above, the defendants have not responded to Hemminghaus’
objections, so they have not confirmed that its expedited delivery is the reason Carroll’s
deposition transcript cost one-and-a-half times more than the other transcripts.
Under the circumstances of this case, expedited delivery was not necessary to the
defendants’ case, as required by 28 U.S.C. § 1920. Though the Carroll deposition took
place toward the end of the period designated for deposing Hemminghaus’ experts, that
has no bearing on the transcript delivery. The deposition was completed long before any
relevant motion deadlines or scheduled trial date. Accordingly, the defendants may only
recover $3.75 per page for the Carroll deposition transcript. This amounts to a $418
reduction of the taxed costs.

–4–

Copies of summary judgment motion and exhibits
Finally, Hemminghaus argues that the defendants are not entitled to recover the
cost of copying their own motion for summary judgment and supporting documents.
Under Section 1920(4), only copies that ―are necessarily obtained for use in the case‖ are
recoverable. I agree with Hemminghaus that, because the defendants filed their motion
for summary judgment electronically and served it via email, copies were not necessarily
obtained. Therefore, the cost of copying the motion and its attachments ($93.30) is not
recoverable.
Based on the foregoing,
IT IS HEREBY ORDERED that Defendants’ Motion for Bill of Costs [#92] is
granted in part and denied in part as set out above.
IT IS FURTHER ORDERED that the Clerk of Court shall tax the following
costs in favor of the State of Missouri, et al., and against Nadine Hemminghaus:
Fees for transcripts necessarily obtained
Witness fees
TOTAL TAXABLE COSTS

$8,481.74
$45.46
$8,527.20

____________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 10th day of April, 2013.

–5–