Tanner et al v. City of Sullivan et al

Filing 234

MEMORANDUM AND ORDER re: 208 ORDERED that Plaintiffs' Motion for Bill of Costs is GRANTED in part and DENIED in part. [Doc. 208] FURTHER ORDERED that Defendant's request for Bill of Costs is DENIED. [Doc. 210] FURTHER ORDERED that the Clerk of Court shall tax costs in the amount of $15,594.97 against Defendants Jeff Rohrer, Don Reed; Shaun Hinson, Darrin Jones, and KevinHalbert.. Signed by Magistrate Judge Nannette A. Baker on 6/28/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DEBORA D. TANNER, et al.,
Plaintiffs,
v.
CITY OF SULLIVAN, et al.,
Defendants.

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Case No. 4:11-CV-1361 NAB

MEMORANDUM AND ORDER1
This matter is before the Court on Plaintiffs’ Motion for Bill of Costs and Defendants’
Memorandum in Support of Bill of Costs. [Docs. 208, 210]. Plaintiffs and Defendants object to
the award of costs to the opposing party.
I.

Procedural Background
Plaintiffs filed a two count complaint against Defendants alleging violation of

constitutional rights under 42 U.S.C. § 1983 and a state law wrongful death claim. On January 9,
2013, the Court granted in part and denied in part Defendants’ Motion for Summary Judgment.
[Doc. 172]. The Court granted judgment in favor of all Defendants on Plaintiff’s constitutional
rights claim in Count I under 42 U.S.C. § 1983; in favor of Defendant Jones regarding failure to
remove plastic utensils from Palmer’s cell regarding Count II; and in favor of Defendant City of
Sullivan regarding Count II. The Court then granted Plaintiffs’ Motion to Dismiss Defendant
David Roche without prejudice. [Doc. 190].
A jury trial was held on the remaining wrongful death claims. At trial, the Court entered
a directed verdict in favor of Defendant Counts on all claims and Defendant Jones regarding
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All matters are pending before the undersigned United States Magistrate Judge, with consent of
the parties, pursuant to 28 U.S.C. ' 636(c).

aggravating circumstances damages. The jury returned a verdict in favor of Plaintiffs on the
remaining counts on January 18, 2013. [Doc. 199]. The jury awarded Plaintiffs $1,300,000.00
in actual damages; $250,000.00 in aggravating circumstances damages against Defendant Jeff
Rohrer; $150,000.00 in aggravating circumstances damages against Defendant Don Reed;
$150,000.00 in aggravating circumstances damages against Defendant Shaun Hinson; and
$1,000,000.00 in aggravating circumstances damages against Defendant Kevin Halbert.
Both parties requested an award of costs. The Court denied the Defendants’ Motion for
Judgment as a Matter of Law or in the Alternative Rule 59 Motion for Remittitur or New Trial.
II.

Standard of Review
“Unless 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). “There is a
presumption that the prevailing party is entitled to costs.” Bathke v. Casey’s General Stores,
Inc., 64 F.3d 340, 347 (8th Cir. 1995). “Where each of the parties has prevailed on one or more
of its claims, defense or counterclaims, the district court has broad discretion in taxing costs.”
Johnson v. Nordstrom-Larpenteur Agency, Inc., 623 F.2d 1279, 1282 (8th Cir. 1980). “[T]here is
no rule requiring courts to apportion costs according to the relative success of the parties.”
Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro S.A. de C.V., 464 F.3d 1339, 1348 (8th
Cir. 2006.)
III.

Discussion
A.

Prevailing Party

In this action, Plaintiffs and Defendants seek an award of costs. Prior to trial, all
Defendants prevailed on Count I of Plaintiffs’ Second Amended Complaint and Defendant City
of Sullivan prevailed on Counts I and II. At trial, Plaintiffs prevailed substantially on Count II

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by obtaining jury verdicts against Defendants Rohrer, Reed, Hinson, Jones, and Halbert in excess
of two million dollars. Defendant Counts a received directed verdict on Count II and Defendant
Roche was dismissed without prejudice.
While both sides won a claim, Plaintiffs changed their relationships with Defendants by
being awarded $2.85 million dollars. Leonard v. Southwestern Bell Corp. Disability Income
Plan, 408 F.3d 528, 532 (8th Cir. 2005) (order remanding district court denial of costs because
although plaintiff lost most claims she succeeded in changing her and others’ legal position, in
addition to recovering $20,000.00); Litecubes, LLC v. Northern Lights Prod., Inc., No. 4:04-CV485 ERW, 2006 WL 5700252 at *12 (E.D. Mo. Aug. 25, 2006) (while both parties each won two
claims, plaintiffs changed their relationship with defendant by being awarded $150,000 and are
the prevailing parties). Because the Plaintiffs won a larger judgment, they “can logically be
considered the prevailing party.” Hillside Enter. v. Carlisle Corp., 69 F.3d 1410, 1416 (8th Cir.
1995).

Therefore, the Court has determined that Plaintiffs will be awarded costs as the

prevailing party against Defendants Rohrer, Reed, Hinson, Jones, and Halbert.
B.

Plaintiffs’ Motion for Bill of Costs

The award of costs other than attorney’s fees are allowed as a matter of course to the
prevailing party, however, “such costs must be set out in 28 U.S.C. § 1920 or some other
statutory authorization.” Fed. R. Civ. P. 54(d), Smith v. Tenet Healthsystem SL, Inc., 436 F.3d
879, 889 (8th Cir. 2006). The Court has reviewed Plaintiffs’ Bill of Costs. The Court will award
costs as follows:
1.

Fees of the Clerk and Marshal

The Court will award Plaintiffs $350.00.00 for filing fee costs. Costs for filing fees are
specifically authorized by 28 U.S.C. § 1920 and will be awarded over defendants’ objection.

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The Court will not award Plaintiffs fees for subpoena and summons that were served by the
Crawford, Franklin, and Boone County sheriffs. Section 1920 only allows for fees for service by
the Marshal. 28 U.S.C. § 1920.
2.

Fees of the Court Reporter

Plaintiffs request $15,163.25 to cover the costs of a court reporter for 22 depositions in
this case. Defendants object stating that Plaintiffs should not receive full reimbursement for the
deposition costs, because they did not prevail in Count I so should only receive reimbursement
for transcription fees related to Count II.

Defendants also propose a fifty percent (50%)

reduction for transcription fees for Defendants Rohrer, Reed, Hinson, Jones, and Halbert because
the focus of Plaintiffs’ questions related to Count I should not be reimbursed. Defendants also
object to Plaintiffs’ request for reimbursement of both stenographic transcription and video
recording for the deposition of Donna Baker.
The court may tax costs for the taking of depositions when the depositions are necessarily
obtained for use in a case and not purely investigative. Zotos v. Lindbergh Sch. Dist., 121 F.3d
356, 363 (8th Cir. 1997). “The determination of necessity must be made at the time of the
deposition without regard to intervening developments that later render the deposition unneeded
for further use. In other words, the underlying inquiry is whether the depositions reasonably
seemed necessary at the time they were taken.” Id. (internal citations omitted).
At the time the depositions were taken, both counts were pending. Moreover, both
counts were based on the same set of facts and circumstances. The primary difference between
Counts I and II was the legal standard for assessing liability on the Defendants. Therefore, the
Court will grant in part Plaintiffs’ request for reimbursement of deposition transcription costs.
The Court will deny Plaintiffs’ request for reimbursement for courier expenses in the amount of

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$170.00 as reimbursement for that expense is not authorized by 28 U.S.C. § 1920. See Tenet,
436 F.3d at 889. The Court will also deny Plaintiffs’ request for reimbursement for stenographic
and video recording costs for Donna Baker’s deposition. Prevailing parties may recover fees for
“printed or electronically recorded transcripts necessarily obtained for use in the case.” 28
U.S.C. § 1920(2) (emphasis added).

Plaintiffs cannot receive reimbursement for both the

stenographic and video recording. Therefore, the Court will deny Plaintiffs reimbursement for
the $300.00 cost of the stenographic transcript. The Court will award Plaintiffs $14,687.25 for
the deposition transcription fees.
3.

Witness Fees

Plaintiffs request $956.94 for witness fees. Defendants objects to reimbursement of trial
subpoena fees for witnesses Plaintiffs never called at trial without a demonstration from
Plaintiffs that the witnesses refused to return the fees and for Sergeant Zelch, because he testified
regarding the City of Sullivan’s parties and the City prevailed on all of its claims. Plaintiffs
replied that no witness fees have been returned and Defendants offer no proof that they cannot
recover these fees.
“A district court may award witness fees if it determines that the witness’s testimony was
crucial to the issues decided and the expenditures were necessary to the litigation.” Marmo v.
Tyson Fresh Meats, Inc., 457 F.3d 748, 763 (8th Cir. 2006). Federal Rule of Civil Procedure
45(b)(1) requires the payment of a witness fess upon service of the subpoena. The Court finds
that Plaintiffs can recover fees for witnesses who were deposed or testified at trial. See Carlisle
v. City of O’Fallon, No. 4:06-CV-643-AGF, 2008 WL 1805647. Therefore, the Court will order
cost for witnesses Scott Mertens (deposition and trial), Donna Baker (trial), and Vernon Zelch
(deposition), and Dr. Kamal Sabharwal (trial) in the amount of $385.10.

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4.

Copy and exemplification fees

Plaintiffs seek reimbursement in the amount of $280.33 for trial exhibits and imaging
DVDs. The Court may award copy and exemplification fees for copies of papers necessarily
obtained for use in the case. 28 U.S.C. § 1920. Defendants object to the award of costs because
(1) imaging costs of $100.00 is unreasonable when most computers come equipped with the
technology, (2) trial exhibits were duplicative because Defendants supplied a complete copy of
their trial exhibits to Plaintiffs in hard copy and electronically on CD, and (3) it is not clear from
the invoice whether the trial exhibits were used. Plaintiffs state that Defendants’ rationale is
unsupported and Plaintiffs can recover for unused trial exhibits.
The Court will award Plaintiffs $172.62 for copy and exemplification fees. The Court
will not award costs for copying trial exhibits from the defense, as copies made for the
convenience of counsel are not recoverable under 28 U.S.C. § 1920. Dunn v. Nexgrill Indus.,
Inc., No. 4:07-CV-1875 JCH, 2011 WL 1060943 at *1 (E.D. Mo. 2011).
5.

Fees for Mediation

Plaintiffs seek reimbursement in the amount of $2,956.95 for court ordered mediation.
The Eighth Circuit has previously indicated that mediation costs are not recoverable under 28
U.S.C. § 1920. See Brisco-Wade v. Coleman, 297 F.3d 781, 782 (8th Cir. 2002). Therefore, the
Court will deny Plaintiffs’ request for costs for mediation fees.
6.

Fees for Videographer

Plaintiffs also request $950.00 for the work of a videographer. Plaintiffs have failed to
provide any support as to why this cost is compensable under 28 U.S.C. § 1920. Therefore, the
Court will deny Plaintiffs’ request for costs for the videographer.

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IV.

Conclusion
Accordingly, the Court will grant in part and deny in part Plaintiffs’ Motion for Bill of

Costs and deny Defendants’ Motion for Bill of Costs.
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Bill of Costs is GRANTED in
part and DENIED in part. [Doc. 208]
IT IS FURTHER ORDERED that Defendant’s request for Bill of Costs is DENIED.
[Doc. 210]
IT IS FURTHER ORDERED that the Clerk of Court shall tax costs in the amount of
$15,594.97 against Defendants Jeff Rohrer, Don Reed; Shaun Hinson, Darrin Jones, and Kevin
Halbert.
Dated this 28th day of June, 2013.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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