Golan et al v. Veritas Entertainment, LLC et al

Filing 484

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Dr. James Leininger and Courage 2012, LLC's Motion for Bill of Costs [ECF No. 464, 465] are GRANTED, in part, and DENIED, in part. IT IS FURTHER ORDERED that Defendant Courage 2012, LLC shall be awarded $3,096.42 in costs and Defendant Dr. James Leininger awarded $13,446.11 in costs. Signed by District Judge E. Richard Webber on November 20, 2017. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RON GOLAN, et al.
Plaintiffs,
vs.
VERITAS ENTERTAINMENT, LLC, et al.,
Defendants.

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Case No. 4:14-CV-00069 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendants Courage 2012, LLC’s Motion for Bill
of Costs [464] and Dr. James Leininger’s Motion for Bill of Costs. [465].
I.

BACKGROUND
This lawsuit originated in the Circuit Court of St. Louis County, Missouri, when

Plaintiffs Ron Golan and Dorit Golan (“Plaintiffs”) filed a petition against Veritas Entertainment,
LLC, Veritas Marketing Group, LLC, Freeeats.com (doing business as ccAdvertising), AIC
Communications, LLC (doing business as ccAdvertising), Gabriel S. Joseph, III, Stephen Wayne
Griffin, Mission City Management, Incorporated (“Mission City”), Courage 2012, LLC
(“Courage”), Dr. James Leininger (Dr. Leininger), SixD, Incorporated, Bob Brewer, and Michael
Huckabee alleging these Defendants violated the Telephone Consumer Protection Act by making
unsolicited pre-recorded calls to residential telephone lines. [ECF No. 1]. On January 15, 2014,
Mission City removed the case to this Court pursuant to 28 U.S.C. §§ 1331, 1332, 1441, 1446,
and 1453. [ECF No. 1]. Defendants Michael Huckabee, Bob Brewer, SixDi, Incorporated, and
Mission City were subsequently dismissed from the case. [ECF No. 127].

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A jury trial was conducted from August 7, 2017, to August 16, 2017. At the close of
Plaintiffs’ evidence, the Court granted Plaintiffs’ Motion for Judgment as a Matter of Law
against Defendants Gabriel S. Joseph, FreeEats.com and AIC Communications, LLC. [ECF No.
429]. On August 15, 2017, the Court granted Plaintiffs’ motion to dismiss Defendants Courage,
Veritas Marketing Group, LLC, and Stephen Wayne Griffin with prejudice. [ECF No. 432]. The
jury found in favor of Dr. Leininger on August 16, 2017. [ECF No. 440]. On October 4, 2017, a
default judgment was entered against Veritas Entertainment, LLC. [ECF No. 475]. Defendants
Courage and Dr. Leininger (“Defendants”) now seek to recover costs from Plaintiffs.
II.

STANDARD
Rule 54(d) of the Federal Rules of Civil Procedure (“FRCP”) provides “costs—other than

attorney’s fees—should be allowed to the prevailing party.” See also In re Derailment Cases,
417 F.3d 840, 844 (8th Cir. 2005) (“A prevailing party is presumptively entitled to recover all of
its costs.”). Pursuant to 28 U.S.C. § 1920, the Court may tax costs for:
(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 costs 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 may not award costs other than those authorized by § 1920, because this
section “imposes rigid controls on cost-shifting in federal courts[.]” Brisco-Wade v. Carnahan,
297 F.3d 781, 782 (8th Cir. 2002) (internal citations omitted). However, upon objection by the
opposing party as to authorized costs, the Court may exercise its discretion to grant or deny
costs. Pershern v. Fiatallis N. Am., Inc., 834 F.2d 136, 140 (8th Cir. 1987). A district court’s
discretion in this regard is broadly construed. Little Rock Cardiology Clinic PA v. Baptist Health,
591 F.3d 591, 601 (8th Cir. 2009).
III.

DISCUSSION
Plaintiffs raise a number of objections to Defendants Dr. Leininger and Courage’s

motions, which the Court will review, in turn.
A. Dr. Leininger’s Motion for Bill of Costs
Dr. Leininger claims costs totaling $47,942.02. [ECF No. 464]. According to Dr.
Leininger, $12,188.78 of these costs result from court reporter services necessarily obtained for
use in this case. [ECF No. 464-1]. Court reporter services were obtained to provide transcripts of
court proceedings and depositions. Dr. Leininger claims $11,620.75 in costs for court report
services obtained in connection with court proceedings. Id. Expenses of $1,794.08 were incurred
as a result the use of court reporter services during depositions. Id. Dr. Leininger divides
deposition transcript costs equally amongst himself, Mission City Management and Courage, as
stipulated by an agreement between these co-defendants. 1 Id. Dr. Leininger also incurred
$1,909.14 for the printing of pretrial materials, depositions and accompanying exhibits, and both
parties’ trial exhibits. Id. Dr. Leininger incurred an additional $32,725.00 for the production of

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In the Memorandum in Support of Dr. Leininger’s Bill of Costs, Dr. Leininger claims $568.03
as his share of the total cost of deposition transcripts. However, one-third of Defendants’ total
deposition transcript costs is $598.02.
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trial graphics to be used during an electronic presentation of evidence at trial. Id. Dr. Leininger
also incurred $400.00 dollars in expenses for the transcript of audio records which were to be
used as trial exhibits. Id. Finally, Dr. Leininger incurred $719.10 for the copying of trial exhibits.
Id.
i. Division of Deposition Costs
Plaintiffs first argue Defendants’ deposition transcript costs, which total $1,794.08, were
improperly divided amongst the parties. [ECF No. 464-1 and 468]. Defendants divide the costs
of these transcripts between three parties: Mission City Management, Courage 2012, LLC, and
Dr. James R. Leininger. [ECF No. 464-1]. Therefore, Defendant Dr. Leininger seeks to recover
$598.02 as compensation for deposition transcript costs. [ECF No. 464.-1]. According to
Plaintiffs, Defendants’ total expenditures for these transcripts should be divided by five because
Dr. Leininger’s law firm also represented co-defendants Steve Griffin and Veritas Marketing at
the time the depositions were taken. [ECF No. 468].
“A district court may tax transcription costs if a deposition was ‘necessarily obtained for
use in a case’ and was not ‘purely investigative.’” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d
748, 764 (8th Cir. 2006) (quoting Smith v. Tenet Healthsystem SL, Inc., 436 F.3d 878, 889 (8th
Cir. 2006)). Within these parameters, a court awarding costs pursuant to FRCP 54(d) and 28
U.S.C. § 1920 enjoys substantial discretion. Computrol, Inc. v. Newtrend, L.P., 203 F.3d 1064,
1072 (8th Cir. 2000); see also Crawford Fitting Co. v J.T. Gibbons, Inc., 482 U.S. 437, 442
(1987) (“Rule 54(d) generally grants a federal court discretion to refuse to tax costs in favor of
the prevailing party”). This discretion allows the Court to equitably apportion costs among
prevailing parties. See Marmo, 457 F.3d at 764 (upholding a district court’s apportionment of
costs under § 1920 between the thirteen parties comprising the consolidated case from which

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those costs arose); see also In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 469 (3d Cir. 2000)
(“The general rule in this circuit and others is that a district court, in exercising its equitable
discretion, may apportion costs between the prevailing and non-prevailing parties as it sees fit.
This power to apportion between parties also includes the power to divide costs among the losing
and winning parties in a case involving multiple defendants and plaintiffs . . .”). The Court
agrees costs should be equally allocated amongst the five parties for whom these depositions
were to benefit. Therefore, Plaintiffs are taxed $358.82 in satisfaction of Dr. Leininger’s onefifths share of the deposition transcript costs.
ii. Expedited Hearing Transcripts
Dr. Leininger incurred court reporter fees of $11,620.75, which he seeks to tax to
Plaintiffs as “[f]ees for printed or electronically recorded transcripts necessarily obtained for use
in the case.” 28 U.S.C. § 1920. Plaintiffs object to $1,561.70 of these costs on the grounds such
costs arise from Dr. Leininger’s decision to expedite certain hearing transcripts. [ECF No. 468].
According to Plaintiffs’ Memorandum in Opposition to Defendants’ Bill of Costs, the cost of
expedited transcripts are either 1) not taxable as a matter of law, or 2) taxable only so far as they
are “reasonably necessary to the furtherance of Defendant’s case.” [ECF No. 468].
It is unclear if the cost of expedited hearing transcripts are taxable under § 1920
following the Supreme Court’s decision in Taniguchi v. Kan Pacific Saipan, Limited, 566 U.S.
560 (2012) (holding the scope of a court's power to tax costs to a non-prevailing party pursuant
to 28 U.S.C. § 1920 is “narrow” and strictly limited to the “specific categories of costs set forth
by Congress.”). See also Kirk v. Schaeffler Grp. USA, Inc., No. 3:13-CV-5032-DGK, 2016 WL
6023696, at *4 (W.D. Mo. Jul. 26, 2016) (holding “the cost of expediting a transcript is not
taxable,” because costs which are “merely associated with a deposition . . . are not compensable

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under § 1920,” as construed by the Supreme Court in Taniguichi). Nonetheless, the Court does
not need to reach this question, because Dr. Leininger’s use of expedited transcripts was not
reasonably necessary to the furtherance of his case. Despite Dr. Leininger’s assertions to the
contrary, “the temporal proximity of the [hearings] to various deadlines” was not so close as to
necessitate the expedition of hearing transcripts. Jo Ann Howard & Associates, P.C. v. Cassity,
146 F.Supp.3d 1071, 1081-82 (E.D. Mo. 2015). The relative lack of complexity in this case
further bolsters the notion the decision to expedite hearing transcripts was merely for the
convenience of counsel. Id.; see also Am. Auto Ins. Co. v. Omega Flex, Inc., No. 4:11-CV00305-AGF, 2014 WL 980398 (E.D. Mo. Mar. 12, 2014) (taxing cost of expedited transcripts to
non-prevailing party because “the expense was not merely a convenience for counsel but was
reasonable and necessary to allow Defendant to prepare its motions in limine”). Therefore,
Plaintiffs are taxed $10,059.05, a number equal to the cost of court reporter services incurred by
Dr. Leininger minus the cost of expedited transcripts.
iii. Taxation of Golan Trial Support Materials under 28 U.S.C. § 1920(3)
Dr. Leininger seeks reimbursement under § 1920(3) for $1,909.14 in printing costs. [ECF
No. 464-1]. $1,044.67 of these costs is allocable to “all pretrial materials for the pretrial
conference held on July 31, 2017, all depositions and accompanying exhibits, and defendants’
trial exhibits.” [ECF No. 464-1]. Of this $1,044.67, $901.14 represents costs arising from Dr.
Leininger’s acquisition of three sets of the above-described materials. Id. $86.68 arises from the
production of a “client copy” of these records. Id. The remaining $816.45 is attributed to
expenses “incurred for printing all of plaintiffs’ trial exhibits designated, which included every
document produced by all defendants’ during discovery.” Id. Dr. Leininger asserts that these
costs are reasonable due to “the extensive, voluminous discovery and list of plaintiffs’ exhibits.”

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Id. Plaintiffs contend costs arising from Dr. Leininger’s decision to obtain three copies of these
materials are an unreasonable expense and should therefore be reduced by two-thirds. [ECF No.
468]. The Court disagrees with this contention. It is customary for parties to have three copies of
trial support materials, such as those described in Dr. Leininger’s motion. Costs arising from Dr.
Leininger’s adherence to this practice are properly considered “reasonably necessary,”
particularly in light of the presumption in favor of a prevailing party’s cost recovery. See In re
Derailment Cases, 417 F.3d at 844 (8th Cir. 2005) (“A prevailing party is presumptively entitled
to recover all of its costs.”). Therefore, Plaintiffs are taxed the full amount of Dr. Leininger’s
printing costs.
iv. Taxation of Defendant’s Graphics and Exhibits under 28 U.S.C. § 1920(4)
Dr. Leininger incurred $32,725.00 for the production of trial graphics, which he claims
were necessary for presentation of evidence at trial. [ECF No. 464-1]. Dr. Leininger seeks the
taxation of these costs as fees for exemplification pursuant to § 1920(4). According to Dr.
Leininger, “the volume of corporate documents and . . . emails that formed the basis of plaintiffs’
evidence militated the creation of trial graphics and visual aids both for the presentation of
evidence and illustrations during opening and closing statements.” Id. Dr. Leininger claims these
demonstrative exhibits were “reasonably necessary to present and explain the evidence and legal
issues to the jury in a clear and efficient manner.” Id. Plaintiffs contest the imposition of costs
stemming from Dr. Leininger’s use of the aforementioned exhibits because said exhibits “were
either unused, or merely illustrative and not necessary to prove Defendant’s case.” [ECF No.
468]. Alternatively, Plaintiffs accuse Dr. Leininger of mischaracterizing the nature of these costs;
Plaintiffs allege these costs arise not from the production of trial graphics, but from the provision
of “trial strategy and tactics,” the costs of which are non-recoverable under § 1920.

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Copy and exemplification fees, “including graphic and visual aids, as well as materials
prepared for electronic display,” are recoverable as “fees for exemplification,” but only to the
extent which they are “necessarily obtained for use in the case.” Cassity, 146 F.Supp.3d at 108586 (interpreting “exemplification” within the meaning of § 1920(4) to include demonstrative
exhibits which have been necessarily obtained for use in a case). “Courts have interpreted the
necessity requirement to exclude cost recovery for exhibits which were merely illustrative of
expert testimony, other adequate evidence, or that served primarily to illustrate counsel’s
argument.” Id. at 1086 (citations omitted); see also Crues v. KFC Corp., 768 F.2d 230, 234 (8th
Cir. 1985) (holding costs arising from the production of trial exhibits as taxable under § 1920(4)
so long as they were “necessarily obtained for use in the case”). Despite Dr. Leininger’s
insistence to the contrary, the trial graphics produced for use in this case cannot be said to have
been “vital,” let alone “necessarily obtained.” Rather, these graphics constitute a clear example
of an expense which “merely make[s] trial more efficient, convenient, or expeditious.” Id. at
1087.2 The Court will not tax Plaintiffs for such a “sensational expense.” Id.
Dr. Leininger also incurred $400.00 for certain other exemplification costs, including
transcription costs for the voicemails at issue in this trial. [ECW No. 464-1]. Plaintiffs do not
contest these expenses. Accordingly, the Court taxes Plaintiffs $400.00 for Dr. Leininger’s
exemplification costs.

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It is also worth noting the extraordinary expense of the trial graphics produced for use in this
case ($32,725.00) places this expense firmly in the category of those costs identified as
potentially problematic by this Court in Jo Ann Howard & Associates v. Cassity, 146 F.Supp.3d
at 1087 (narrowly construing § 1920(4) so as to prevent “the allure of expending vast sums of
money on elaborate, professionally prepared exhibits and electronic presentations” that have jury
appeal, but which are unnecessary to the case).
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v.

Taxation of “Internal Reproduction Costs” under 28 U.S.C. § 1920(4)

Dr. Leininger requests taxation of $719.10 in copying costs. [ECF No. 464-1]. According
to Dr. Leininger, these costs represent one-third of costs arising from the copying of trial exhibits
used in the courtroom and at sidebars. Id. Plaintiffs contest taxation of these costs on the grounds
the costs are duplicative of other requested costs and are insufficiently documented to
demonstrate necessity for use in the case. [ECF No. 468].
Amounts requested for copy costs must be “documented or itemized in such a way that
the Court can meaningfully evaluate [a] request.” Yaris v. Special Sch. Dist. of St. Louis Cty, 604
F.Supp. 914, 914 (E.D. Mo. 1985); see Finan v. Good Earth Tools, Inc., No. 4:06-CV-878 CAS,
2008 WL 1805639, at *11 (E.D. Mo. Apr. 21, 2008) (declining to tax copy costs when the only
information provided by the prevailing party pertaining to those costs was the cost per page and
number of pages copied). The Memorandum in Support of Defendant Dr. Leininger’s Bill of
Costs establishes these costs “were incurred on July 20 and July 26, 2017 for copying all trial
exhibits to be used in the courtroom by Dr. Leininger’s counsel and the Court, such as at
sidebars.” [ECF No. 464-1]. This information is sufficient to ensure the Court these reproduction
expenses were “necessarily obtained for use in the case.” See Chavis Van & Storage of Myrtle
Beach, Inc. v. United Van Lines, LLC, No. 4:11-CV-1299 RWS, 2014 WL 1729152 (E.D. Mo.
2014 May 1, 2014) (holding that the prevailing party could have established the necessity of its
claimed copy costs by providing “a description of the types of materials copied and their
purpose”). Furthermore, there is no indication to lend support to Plaintiffs’ assertion these
expenses are duplicated elsewhere in Dr. Leininger’s Bill of Cost. Therefore, the Court will
award Dr. Leininger $719.10 for internal reproduction costs.

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B. Courage 2012, LLC’s Motion for Bill of Costs
Courage claims total costs of $3,650.63. [ECF No. 465]. Of these costs, $3,335.63 results
from Courage’s use of court reporter services during depositions and hearings. Id. An additional
$598.02 is attributable to Courage’s share of deposition transcript costs, as stipulated by the costsharing agreement entered into by Courage, Dr. Leininger, and Mission City Management for the
allocation of deposition transcript costs.3 [ECF No. 465-1]. The remaining $2,737.61 of
Courage’s court reporter costs is attributable to court reporters services obtained for the
production of hearing transcripts. Id. Courage also claims costs of $315.00 for a video transcript
of Dr. Leininger’s deposition. Id.
i. Voluntarily dismissed parties under FRCP 54(d) and 28 U.S.C. § 1920
Plaintiffs voluntarily dismissed Courage 2012, LLC (“Courage”) on August 15, 2017.
[ECF No. 432]. As a result, Plaintiffs contend Courage “cannot be seen as the prevailing party
under the law,” because it “did not receive the Court’s judgment, nor was the case adjudicated on
its merits.” [ECF No. 468]. As a result of its purported status as a non-prevailing party, Plaintiffs
maintain Courage is unable to claim costs under Rule 54(d) § 1920. This line of argument
implicates two questions of law: 1) whether a voluntarily dismissed party can be considered a
“prevailing party” under Rule 54(d) and § 1920, and 2) whether a party’s failure to qualify as a
“prevailing party” bars cost recovery under these authorities.
There is uncertainty within the Eighth Circuit as to whether a voluntarily dismissed party
can be considered a prevailing party under Rule 54(d) and § 1920. See Droste v. Julien, 477 F.3d
1030, 1036 (8th Cir. 2007) (refusing to state whether a voluntary dismissal with prejudice
renders the dismissed a prevailing party); Sequa Corp. v. Cooper, 245 F.3d 1036, 1037-38 (8th

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See supra text accompanying note 1.
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Cir. 2001) (“we disagree with the . . . conclusion that Sequa’s voluntary dismissal of the action
made defendants prevailing parties . . .. [A] voluntary dismissal without prejudice means that
neither party can be said to have prevailed.”); but see Mary Elle Fashions, Inc. v. Jasco Products
Co., LLC, 4:15 CV 855 RWS, 2016 WL 427950, at *2 (E.D. Mo. Feb. 4, 2016) (“[w]hen a party
unilaterally seeks dismissal of an action pursuant to FRCP 41(a)(2), . . . the opposing party is
often regarded as the prevailing party for purposes of an award of costs) (citing to Power Mosfet
Techs., L.L.C. v. Siemens AG, 378 F.3d 1396, 1416 (Fed. Cir. 2004) (“[t]he dismissal of a claim
with prejudice is a judgment on the merits”)). Nonetheless, while there is uncertainty in regards
to whether a voluntarily dismissed party can be considered a prevailing party, it is well
established in this Circuit, a voluntarily dismissed party is eligible for an award of costs under
Rule 54(d), irrespective of whether that party is considered to have prevailed. See Sequa Corp.,
245 F.3d at 1037-38 (“[w]e do not read Rule 54(d)(1) as impairing the inherent authority of a
trial court to award costs incurred in defending an action prior to its voluntary dismissal by the
plaintiff, even though a voluntary dismissal without prejudice means that neither party can be
said to have prevailed”). Courage “incurred costs in defending the action” before being
dismissed by Plaintiffs. Courage is entitled to recover these costs under Rule 54(d) and § 1920.
Sequa Corp., 245 F.3d at 1038; see also Droste, 477 F.3d at 1036 (reiterating the holding
articulated in Sequa Corp., 245 F.3d at 1038).
ii. Division of Deposition and Hearing Transcript Costs
Plaintiffs contest Courage’s division of deposition costs between three defendants instead
of the five parties who were originally involved in the defense of this case (Mission City
Management, Courage 2012, LLC, Dr. Leininger, Steve Griffin, and Veritas Marketing). [ECF
No. 468]. For the same reasons articulated in Part III(A)(i) of this opinion, the Court will allocate

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deposition costs equally amongst the five parties for whom these depositions were taken to
benefit. Plaintiffs are taxed $358.82 for Courage’s share of deposition costs. Furthermore,
Plaintiffs do not specifically contest the cost of hearing transcripts ordered by Courage. Plaintiffs
are therefore taxed an additional $2,737.61 for a total cost of $3,096.43.
iii. Taxation of Electronic Deposition Transcripts under 28 U.S.C. § 1920(4)
Plaintiffs argue they should not incur Courage’s costs for video and written transcripts of
Dr. Leininger’s deposition. [ECF No. 468]. More specifically, Plaintiffs contend they should not
bear the cost for the video transcript of Dr. Leininger’s deposition ($315.00) because a video
copy was not “reasonably necessary for the furtherance of Defendant’s case.” Id. In general, the
courts of this Circuit have consistently held § 1920 to permit the “taxation of costs for both
printed and electronically recorded transcripts of the same deposition as long as each transcript is
necessarily obtained for use in a case.” Stanley v. Cottrell, Inc., 784 F.3d 454, 467 (8th Cir.
2015); see also Craftsmen Limousine, Inc. v. Ford Motor Co., 579 F.3d 894 (8th Cir. 2009)
(holding the costs of video depositions as taxable under § 1920, unless demonstrated as
unreasonable or unnecessary by the non-prevailing party). The Court agrees with Plaintiffs’
contention a video copy of Dr. Leininger’s deposition transcript was not reasonably necessary for
use in this case. Furthermore, there was no indication at the time the deposition was taken Dr.
Leininger would be unable to testify at trial, a fact, which if present, would have justified the cost
of the video transcript. Plaintiffs will not be taxed for the cost of the video transcript of Dr.
Leininger’s deposition.

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Accordingly,
IT IS HEREBY ORDERED that Defendants Dr. James Leininger and Courage 2012,
LLC’s Motion for Bill of Costs [ECF No. 464, 465] are GRANTED, in part, and DENIED, in
part.
IT IS FURTHER ORDERED that Defendant Courage 2012, LLC shall be awarded
$3,096.42 in costs and Defendant Dr. James Leininger awarded $13,446.11 in costs.
Dated this 20th Day of November, 2017.

_________________________________________
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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