Marianist Province of the United States et al v. City of Kirkwood et al

Filing 117

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Bill of Costs (ECF No. 104 ) is GRANTED, in part, and DENIED, in part. The Court awards Defendants their costs in the amount of $6,353.72. Signed by District Judge Ronnie L. White on 1/31/2020. (TMT)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MARIANIST PROVINCE OF THE UNITED )
STATES and ST. JOHN VIANNEY HIGH
)
SCHOOL, INC.,
)
)
Plaintiffs,
)
)
v.
)
)
CITY OF KIRKWOOD,
)
)
Defendant,
)
)
and
)
)
BOARD OF ADJUSTMENT OF THE
)
CITY OF KIRKWOOD,
)
)
Respondent.
)

No. 4:17-CV-805 RL W

MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Bill of Costs (ECF No. 104). Defendants
ask for $7,512.47 in costs for fees of the clerk ($400), fees for printed or electronically recorded
transcripts necessarily obtained for use in this case ($6,879.05), and fees for witnesses ($233.42).
In response, Plaintiffs argue that Defendants improperly requested costs for both stenographic and
videography services, which is not authorized by 28 U.S.C. §1920(2) and Fed. R. Civ. P. 54(d)(2).
Plaintiffs ask the Court to deduct the cost of videography for Michael Loy et' s deposition in the
amount of $1,158.75 from the requested $7,512.47.
In response, Defendants contend they took Mr. Loy et' s deposition via video because he
was the primary witness for Vianney, having made all the decisions regarding the renovations of
the baseball field and having provided a lengthy affidavit in support of Plaintiffs' motion for

summary judgment. (ECF No. 116 at 3). Defendants assert Mr. Loyet's credibility was at issue
and the jury needed to observe his demeanor if this case went to trial.

Defendants claim they

would have used the video deposition for cross-examination even if Plaintiffs called Mr. Loyet
during their case in chief, and Defendants needed the stenographic transcription for the cross
motions for summary judgment. (ECF No. 116 at 3).
28 U.S.C. § 1920(2) allows "(t)ees for printed or electronically recorded transcripts
necessarily obtained for use in the case." Defendants note that the Eighth Circuit has concluded
"that § 1920(2) permits 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). In Stanley, the plaintiff "present[ed] no argument

that any written or electronically recorded transcript of the same deposition was unnecessarily
obtained for use in this case." Id. The Eighth Circuit affirmed the district court's cost award for
both printed and electronically recorded transcripts. Id.
Here, the Court holds that the $1,158.75 cost for videography services is not recoverable.
Plaintiffs indicate that Mr. Loy et would have been available for trial. Defendants would have been
able to test Mr. Loyet's credibility at trial, and his video testimony by deposition was not necessary.
Rather, Defendants merely made a tactical decision to record Mr. Loyet's testimony by
videography in case it would advance their case. The Court holds that Defendants' strategic basis
for video recording Mr. Loy et' s deposition does not provide a basis for recovery of videography
costs under 28 U.S.C. § 1920. Therefore, the Court denies the cost for those services. See Tanner
v. City of Sullivan, No. 4:11-CV-1361 NAB, 2013 WL 3287168, at *4 (E.D. Mo. June 28, 2013)

(denying Plaintiffs' request for costs for the videographer for failure to show entitlement to costs
under 28 U.S.C. §1920).
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•

Accordingly,
IT IS HEREBY ORDERED that Defendants' Bill of Costs (ECF No. 104) is GRANTED,

in part, and DENIED, in part.

The Court awards Defendants their costs in the amount of

$6,353.72.

Dated this 31st day of January, 2020.

~~
~L.WHITE
UNITED STATES DISTRICT JUDGE

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