Starr Indemnity & Liability Company v. Continental Cement Company, LLC et al

Filing 204

MEMORANDUM AND ORDER:IT IS HEREBY ORDERED that Plaintiffs Bill of Costs 196 is DENIED, in part, and GRANTED, in part. IT IS FURTHER ORDERED that costs are taxed against Defendants Continental Cement Company, L.L.C. and Summit Materials, L.L.C.and in favor of Plaintiffs Starr Indemnity and Liability Company and New York Marine & General Insurance Company in the amount of $15,244.92. IT IS FINALLY ORDERED that execution on this Bill of Costs award be stayed pending the outcome of Continentals appeal. Signed by District Judge John A. Ross on 6/21/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

STARR INDEMNITY and LIABILITY CO.
and NEW YORK MARINE and GENERAL
INSURANCE CO.,
Plaintiffs,
v.
CONTINENTAL CEMENT CO., L.L.C. and
SUMMIT MATERIALS, L.L.C.,
Defendants.

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No. 4:11-CV-809 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Bill of Costs. (ECF No. 196). This matter is
fully briefed and ready for disposition.
BACKGROUND
On May 1, 2013, a jury found in favor of Plaintiffs Starr Indemnity and Liability
Company and New York Marine & General Insurance Company (collectively, “Starr”) on
Defendants Continental Cement Company, L.L.C. and Summit Materials, L.L.C.’s (collectively
“Continental”) cross-claims for wreck removal of the MARK TWAIN and for insurance benefits
and interest. On May 17, 2013, the Court entered judgment in favor of Starr and ordered the
return of premiums for the insurance policies that were voided. (ECF No. 195). On May 20,
2013, Starr filed its Motion for Bill of Costs, asserting that it is entitled to costs pursuant to Rule
54 and 28 U.S.C. §1920 in the amount of $15,590.74.

STANDARD OF REVIEW
Costs, other than attorneys’ fees, “should be allowed to the prevailing party.” Fed. R.
Civ. P. 54(d); see also 28 U.S.C. § 1920 (enumerating costs that are recoverable).1 “Federal
courts are bound by the limitations set out in section 1920.” 168th & Dodge, LP v. Rave
Reviews Cinemas, LLC, 501 F.3d 945, 957 (8th Cir. 2007) (citations omitted). Although there is
a presumption that the prevailing party is entitled to its costs, the district court has “substantial
discretion” in awarding costs. Marmo v. Tyson Fresh Meats, 457 F.3d 748, 762 (8th Cir. 2006)
(citing Computrol, Inc. v. Newtrend, L.P., 203 F.3d 1064, 1072 (8th Cir. 2000)); Bathke v.
Casey’s Gen. Stores, 64 F.3d 340, 347 (8th Cir. 1995). “The losing party bears the burden of
overcoming the presumption that the prevailing party is entitled to costs, meaning that the losing
party must ‘suggest a rationale under which the district court’s actions constitute an abuse of
discretion.’” 168th & Dodge, LP, 501 F.3d at 958 (quoting Janis v. Biesheuvel, 428 F.3d 795,
801 (8th Cir. 2005)).
DISCUSSION
Continental objects to portions of Starr’s Bill of Costs for two reasons. First, Continental
claims that Starr’s copying costs of $2,305.49 are unnecessary and unreasonable. Second,
Continental contends that Starr’s costs for unnecessary depositions and video recordings should
be denied.
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28 U.S.C. § 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 cost 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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The Court awards Starr the costs for which Continental has not filed any objection. The
copying costs and deposition costs, for which Continental has raised objections, are addressed
herein.
A. Copying Charges
Continental takes issue with Starr’s copying charges in the amount of $2,305.49. (ECF
No. 198, p. 2). The invoice states that it is for 3,546 “color copies (Printed)”, 105 more color
copies, and 1,108 black-and-white copies. (Id.). Continental assumes that these documents were
for trial, but notes that Starr offered fewer than 10 photographs at trial. Continental asserts that
Starr cannot recover copying charges for documents that were not necessary and never used at
trial.
Starr notes that the parties exchanged several thousand photographs and other documents.
Starr claims that the copy charges included in its Bill of Costs were only for those copies that
Starr considered using at trial. (ECF No. 199, p. 3). Starr contends that it should recover the
cost of all of these copies even though it only used a few of the photographs because it has no
means of knowing which photographs would become necessary prior to trial, particularly given
Continental’s differing theories regarding why the MARK TWAIN sank. (Id.). In summary,
Starr claims that “[e]ven if some copies duplicated others, those duplicates were minimal, and all
of the copies were for trial.” (Id.).
“In determining whether a photocopy expense is necessary so as to be taxable as a cost
and whether to award that cost to the prevailing party, the district court enjoys discretion so long
as it does not act arbitrarily.” Concord Boat Corp. v. Brunswick Corp., 309 F.3d 494, 498 (8th
Cir. 2002). When an expense is taxable as a cost, however, there is a strong presumption that a
prevailing party shall recover it “in full measure.” In re Paoli R.R. Yard PCB Litig., 221 F.3d

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449, 468 (3d Cir. 2000); see Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 363 (8th Cir. 1997).
The Court also recognizes that the losing party bears the burden of making the showing that an
award is inequitable under the circumstances. Concord Boat Corp., 309 F.3d at 498. The Court
believes that Continental has satisfied this burden by demonstrating that Starr requests costs for
copying thousands pages of photographs yet it utilized only 10 photographs during trial.

The

Court concludes that many of the requested photographs for which Starr requests compensation
are duplicates. The Court, however, notes that neither party analyzed the photographs on a
photograph by photograph basis so it is impossible for the Court to determine the precise number
of duplicate copies.

Further, while the Court understands that the parties cannot always

anticipate the course of trial testimony or the evidence the opposing side may present in support
of its case, the Court finds that the disproportionate number of copies made in comparison to the
10 photographs used at trial makes an award of Starr’s requested copying costs inequitable.
Accordingly, the Court will make a fifteen (15) percent reduction to Starr’s requested copying
costs of $2,305.49. The Court awards Starr its copying costs in the amount of $1,959.67. See
Concord Boat Corp., 309 F.3d at 499 (holding that the factors “support[ed] no more than a
fifteen percent reduction to [defendant’s] request for copy costs”).
B. Unnecessary Depositions and Video Recordings
Continental also claims that Starr improperly seeks to recover expenses for unnecessary
depositions and video recordings. (ECF No. 198, p. 2). Starr requests costs for the deposition of
Todd Swenson in the amount of $551.50 even though Starr did not use this deposition at trial and
did not call Swenson as a witness. (Id.). Starr also submitted deposition expenses for three other
witnesses who were not called at trial and were within the subpoena power of the Court: Bruce
Gibson ($676.60), Dennis Georges ($359.20), and Leon McKinney ($430.05).

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Continental asserts that these depositions were purely investigative in nature and not
necessarily incurred, as required under §1920. For example, Continental maintains that the
depositions of Mr. Gibson and Mr. Georges were regarding Starr’s claim that Continental
destroyed evidence in connection with the wreck removal, which the Court found to be
unfounded.

Likewise, the deposition of Mr. McKinney related to Starr’s claim that he

improperly influenced the U.S. Army Corps of Engineers, which the Court concluded was “pure
speculation.”
In reply, Starr claims that these depositions were necessarily incurred based upon the
information known at the time the depositions were taken. ECF No. 199, pp. 2-3 (citing Thomas
v. Newton, 4:07CV556 AGF, 2009 WL 1851093, at *3 (E.D. Mo. June 26, 2009)(“The
determination of whether a deposition was necessary ‘must be made in light of the facts known
at the time of the deposition, without regard to intervening developments that later render the
deposition unneeded for further use.’”). Starr claims that Continental has not satisfied the
“burden of making specific objections that demonstrate that a particular deposition was
unnecessarily taken.”

(ECF No. 199, p. 2 (citing Buehrle v. City of O'Fallon,

4:10CV00509AGF, 2012 WL 579473, at *2 (E.D. Mo. Feb. 22, 2012)).
Starr notes that people at issue were on both parties’ “may call” witness lists. Starr states
that it took the video deposition of Todd Swenson, who resides in Connecticut, because he
submitted Continental’s insurance application (that omitted the 2008 survey). Starr claims that
Continental’s insurance application was a “key issue” in this case and Starr intended to use the
deposition at trial. (ECF No. 199, p. 2). In addition, Starr claims that it deposed Lee McKinney
because it intended to call him regarding Continental’s P&I claim, and Starr used that deposition
in a number of pretrial briefs. (Id.). Starr asserts that it should recover the costs of this

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deposition even though the Court’s later evidentiary ruling made such deposition unnecessary.
Moreover, Starr claims that the depositions of Dennis Georges and Bruce Gibson were
reasonably necessary for the presentation of Starr’s case.

Both were divers employed by

Continental and provided evidence relied upon by Continental’s experts John Tylawsky and John
Stockman. (Id.). Thus, Starr claims that it is entitled to recover the costs of Mr. Georges’ and
Mr. Gibson’s depositions even though Continental decided not to call them at trial.
The Court finds that all of these depositions were “necessarily obtained for use in this
case” as required by §1920. The Court agrees that the facts and circumstances surrounding
Continental’s insurance application were at issue in this litigation and that the deposition of Todd
Swenson, therefore, was reasonably incurred. Likewise, the Court notes that the investigation of
the P&I claim was at issue, particularly with respect to Continental’s vexatious refusal to pay
claim. Although the Court ultimately ruled that Mr. McKinney’s influence on the Corps was not
untoward, the Court finds that Starr’s investigation of this issue in preparation for pretrial
motions was reasonably necessary under the circumstances. Finally, the Court finds that the
depositions of divers Dennis Georges and Bruce Gibson were necessary because they provided
evidence relied upon by Continental’s experts, John Tylawsky and John Stockman. Because the
expert reports of Mr. Tylawsky and Mr. Stockman were at issue in the trial, the Court finds that
the expenses for these depositions were reasonably incurred under §1920.
C. Effect of Appeal
The Court notes that Continental filed a Notice of Appeal on June 14, 2013 (ECF No.
200). The Court, therefore, orders that execution on this Bill of Costs award be stayed pending
the outcome of Continental’s appeal.
Accordingly,

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IT IS HEREBY ORDERED that Plaintiffs’ Bill of Costs [196] is DENIED, in part, and
GRANTED, in part.
IT IS FURTHER ORDERED that costs are taxed against Defendants Continental
Cement Company, L.L.C. and Summit Materials, L.L.C.and in favor of Plaintiffs Starr
Indemnity and Liability Company and New York Marine & General Insurance Company in the
amount of $15,244.92.
IT IS FINALLY ORDERED that execution on this Bill of Costs award be stayed
pending the outcome of Continental’s appeal.
Dated this 21st day of June, 2013.

_________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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