Burdess et al v. Cottrell, Inc.

Filing 124

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Cottrell's Motion for Bill of Costs (Doc. 117 ) is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that the Clerk of Court shall tax costs against Plaintiffs and in favor of Cottrell in the amount of $4,618.60. IT IS FINALLY ORDERED that execution of this modified Bill of Costs shall be STAYED pending the outcome of Plaintiffs' appeal. Signed by District Judge John A. Ross on 3/25/22. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GREGORY BURDESS & LISA BURDESS,
Plaintiffs,
v.
COTTRELL, INC.,
Defendant.

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Case No. 4:17-CV-01515-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Cottrell, Inc.’s (“Cottrell”) Motion for Bill
of Costs. (Doc. 117). Plaintiffs have filed objections (Doc. 122), and Cottrell has replied. (Doc.
123). For the reasons discussed below, the motion will be granted in part and denied in part.
I.

BACKGROUND
Cottrell manufactures and sells trailers for hauling cars. Plaintiff Gregory Burdess

(“Burdess”) used Cottrell trailers in his capacity as a car hauler for Jack Cooper Transport
Company. Burdess was eventually diagnosed with bilateral shoulder impingement syndrome, a
condition sometimes caused by specific and repetitive trauma. Plaintiffs alleged that Cottrell was
responsible for Burdess’ injuries due to defects in its trailers. (Doc. 1). On April 8, 2021, this
Court granted summary judgment in favor of Cottrell because Plaintiffs’ claims are time-barred
under Illinois law as applied pursuant to Missouri’s borrowing statute, MO. REV. STAT. §
516.190. (Doc. 115). Plaintiffs have appealed this decision to the Eighth Circuit Court of
Appeals. (Doc. 118). As the prevailing party in this Court, Cottrell seeks $9,041.75 in costs per
Fed. R. Civ. P. 54(d).

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II.

LEGAL STANDARD
District courts may award costs to a prevailing party pursuant to Fed. R. Civ. P. 54(d),

but such costs must be set out in 28 U.S.C. § 1920 or some other statutory authorization. Smith v.
Tenet Healthsystem SL, Inc., 436 F.3d 879, 889 (8th Cir. 2006). Under 28 U.S.C. § 1920(2), a
district court may tax as costs “[f]ees for printed or electronically recorded transcripts necessarily
obtained for use in the case.” If the opposing party objects, this Court may exercise its discretion
to grant, deny, or modify the costs. Pershern v. Fiatallis N. Am., Inc., 834 F.2d 136, 140 (8th Cir.
1987). District courts have “substantial discretion” in awarding costs under Rule 54(d). Smith,
436 F.3d at 889 (citing Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 363 (8th Cir. 1997)). While
Rule 54(d) is permissive, there is a presumption in the Eighth Circuit that the prevailing party is
entitled to an award of costs. See Thompson v. Wal-Mart Stores, Inc., 472 F.3d 515, 517 (8th Cir.
2006).
III.

ANALYSIS
As the prevailing party, Cottrell seeks $9,041.75 in fees for printed or electronically

recorded transcripts necessarily obtained for use in the case. See 28 U.S.C. § 1920(2). This Court
will consider each of Plaintiffs’ objections to Cottrell’s Bill of Costs.
Cottrell’s Lack of Compliance with Case Management Order
Plaintiffs argue that this Court should exercise its discretion and refuse to tax costs in
Cottrell’s favor “[b]ecause Cottrell repeatedly violated the Court’s scheduling orders resulting in
additional costs.” (Doc. 122 at 1). This Court previously recognized that a discovery motion by
Plaintiffs “raise[d] serious issues regarding [Cottrell’s] compliance with this Court’s Case
Management Order.” (Doc. 59 at 1). The Court concluded, however, that “the alleged harm
suffered by Plaintiffs can be substantially mitigated through mutually agreed upon scheduling
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adjustments” and accordingly denied Plaintiffs’ discovery motion without prejudice. (Id.).
Plaintiffs have failed to demonstrate how this prior discovery issue increased the costs Cottrell
now seeks to impose. Accordingly, the Court considers this issue of limited relevance when
assessing Cottrell’s Bill of Costs.
Statutory Authorization
As indicated above, costs may only be taxed pursuant to Rule 54(d) if statutorily
authorized. Plaintiffs first contend that 28 U.S.C. § 1920(2) only permits “[f]ees for printed or
electronically recorded transcripts necessarily obtained for use in this case” (emphasis added),
and therefore Cottrell cannot obtain fees for both printed and electronically recorded versions.
Plaintiffs ignore clear Eighth Circuit precedent involving Cottrell, however, specifically holding
that both printed and electronically recorded transcripts may necessarily be obtained for use in a
given case. Stanley v. Cottrell, Inc., 784 F.3d 454, 467 (8th Cir. 2015) (“[W]e conclude 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.”).
Plaintiffs next argue that copying costs are not recoverable, but again neglect to cite the
most applicable precedent. In Stanley, the Eighth Circuit affirmed the taxing of copying costs
pursuant to 28 U.S.C. § 1920(4). Plaintiffs have not shown that Cottrell “obtained any of these
copies for reasons other than trial preparation.” Slagenweit v. Slagenweit, 63 F.3d 719, 721 (8th
Cir. 1995).
Plaintiffs further contend that only the transcripts of medical expert depositions were
necessarily obtained for use in this case. This Court is quite familiar with the record and relied
extensively on all deposition transcripts – particularly that of Burdess – in granting summary
judgment in favor of Cottrell. The fact that Cottrell obtained judgment before trial was necessary
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does not preclude taxing of costs for these depositions. Plaintiffs misinterpret applicable
precedent by suggesting depositions must be used at trial or for impeachment purposes in order
to be taxed against the non-prevailing party. See Green v. City of St. Louis, No. 4:05-CV-198
JCH, 2007 WL 4553967, at *1 (E.D. Mo. Dec. 19, 2007) (citation omitted) (“A deposition not
used at trial can still be taxed so long as it was taken for use at trial and not merely for discovery
purposes.”). The deposition transcripts for which Cottrell seeks costs were necessarily obtained
for use in this case. See 28 U.S.C. § 1920(2).
Certain costs which Cottrell seeks to tax, however, are not statutorily authorized. For
multiple deposition transcripts, Cottrell includes delivery and handling in its calculation of costs.
This Court will follow the precedent of courts in the Eighth Circuit which consistently deny
prevailing parties’ attempts to tax delivery and handling costs. See Hoover v. Bayer Healthcare
Pharms., Inc., No. 3:14-CV-05090-SRB, 2017 WL 2321146, at *2 (W.D. Mo. Mar. 27, 2017);
see also Smith, 436 F.3d at 889 (Non-prevailing party “should not have been taxed for delivery
costs for these depositions.”). Cottrell’s Bill of Costs also includes various charges for “Interest,”
presumably incurred due to a failure to timely pay the transcript bill. (Doc. 117-1 at 3, 11-12).
Cottrell cannot pass its interest charges on to Plaintiffs. Finally, Cottrell may not recover for
exhibit management because such costs are not specifically permitted under § 1920. See Cramer
v. Equifax Inf. Servs., LLC, No. 4:18-CV-1078 SEP, 2020 WL 887996, at *4 (E.D. Mo. Feb. 24,
2020) (finding no court in this district has permitted taxing of exhibit management fees).
Excessive Costs
Plaintiffs contend that Cottrell obtained extremely unfavorable pricing from Veritext
Legal Solutions for transcription and videography services. It appears, for example, that Cottrell
paid as much as $8.50 per page for the deposition transcript of an expert witness, while
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Plaintiffs’ court reporters only charged $1.85 per page. (Doc. 122 at 6). Cottrell responds that
whether it was overcharged for transcripts is irrelevant. (Doc. 123 at 2). This Court disagrees.
Plaintiffs should not be taxed for Cottrell’s failure to obtain reasonable pricing. See
Hemminghaus v. Missouri, No. 4:11-CV-736 CDP, 2013 WL 10256095, at *2 (E.D. Mo. Apr.
10, 2013) (reducing per page deposition transcript costs); McFarland v. McFarland, No. C084047-MWB, 2011 WL 5554267, at *3 (N.D. Iowa Nov. 15, 2011) (reducing excessive copying
costs); see also Hoover, 2017 WL 2321146, at *4 (citation omitted) (“[I]t is within the sound
discretion of the trial court to grant, modify or deny requests for taxation of costs.”).
Courts in this district have routinely found transcript fees in the range of $3.00 to $4.00
per page to be reasonable. See, e.g., Am. Guaranteed & Liab. Ins. Co. v. Fidelity & Guar. Co.,
No. 4:06-CV-655 RWS, 2010 WL 1935998, at *4 (E.D. Mo. May 10, 2010) (noting that $3.60
per page is less than government rate for non-expedited transcript); Glastetter v. Sandoz Pharms.
Corp., No. 1:97-CV-131 ERW, 2000 WL 34017154, at *4-6 (E.D. Mo. Oct. 3, 2000) (discussing
average rate per page of $3.00 per page). In the two depositions at issue, Cottrell was charged
$7.23 and $8.50 per page respectively. In its discretion, this Court will reduce these transcription
fees by half because they are unreasonably high and Cottrell has offered no explanation for the
above-market price.
Cottrell also paid $1,497.50 and $2,330 to videotape the depositions of Burdess and Dr.
Gerald Micklow respectively. (Doc. 117-1 at 2, 11). Video deposition costs are generally
compensable if necessarily obtained for use in the case. See Craftsmen Limousine, Inc. v. Ford
Motor Co., 579 F.3d 894, 897-98 (8th Cir. 2009). Plaintiffs argue, however, that similar services
are available for only $300. (Doc. 122 at 1). The costs incurred by Cottrell appear to
substantially exceed typical costs for deposition videos considered by courts in this district. See,
e.g., Cowden v. BNSF Ry. Co., 991 F. Supp. 2d 1084, 1090-92 (E.D. Mo. 2014) (considering
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various video deposition costs in range of $546.25 to $605 per deposition); MEMC Elec.
Materials, Inc. v. Sunlight Grp., Inc., No. 4:08-CV-535 FRB, 2012 WL 918743, at *2 (E.D. Mo.
Mar. 19, 2012) (considering $320 cost for video deposition); Sportsman v. BNSF Ry. Co., No.
4:10-CV-513 TIA, 2011 WL 4528388, at *1 (E.D. Mo. Sept. 29, 2011) (considering $625.20
cost for video deposition); Bazzi v. Tyco Healthcare Grp., LP, No. 4:08-CV-2034 CEJ, 2010 WL
1948285, at *1 (E.D. Mo. May 14, 2010) (considering $810 cost for video deposition). Cottrell
offers no explanation for the extremely high costs incurred for its video depositions. In its
discretion, this Court will limit Cottrell to recovering half of its video deposition costs.
Plaintiffs’ Alleged Indigence
Plaintiffs briefly claim that this Court should refuse to tax costs due to their indigence.
(Doc. 122 at 1-2). In limiting Cottrell’s costs, this Court has considered the relative financial
status of the parties. See Cross v. Gen. Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983)
(holding district court did not abuse discretion by considering plaintiff’s limited financial
resources); Thull v. Techtronic Indus. Co., Ltd., No. 11-CV-2368 (PJS/LIB), 2015 WL 1021316,
at *3 (D. Minn. Mar. 9, 2015) (“District courts within the Eighth Circuit have, in the past,
considered the non-prevailing party’s financial status when determining whether to tax costs.”).
Plaintiffs, however, have not provided sufficient information regarding their financial status to
justify a finding of indigence or total denial of Cottrell’s motion for costs. See Cramer, 2020 WL
887996, at *2 (“Without documentation substantiating Plaintiff’s hardship, she has not overcome
the presumption that costs should be taxed.”); Beckley v. St. Luke’s Episcopal-Presbyterian
Hosps., No. 4:17-CV-1369 RLW, 2019 WL 2437957, at *2 (E.D. Mo. June 11, 2019) (“Plaintiff
provided no evidence she will suffer severe financial hardship if the Court awards costs to

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Defendant.”). Plaintiffs have not substantiated their supposed indigence with adequate
supporting evidence.
IV.

CALCULATING COSTS
Cottrell seeks $9,041.75 in costs. (Doc. 117). Consistent with the above analysis, this

Court will make the following reductions before taxing costs to Plaintiffs:
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Delivery & Handling Costs (not compensable): $226

•

Interest (not compensable): $143.35 1

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Exhibits (not compensable): $511.30 2

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Excessive Veritext Transcript Fees (50% reduction): $1,628.75 3

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Excessive Videographer Fees (50% reduction): $1,913.75

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Total Reduction: $4,423.15

Subtracting the total reduction from Cottrell’s Bill of Costs, this Court will tax Plaintiffs costs in
the amount of $4,618.60.
V.

PLAINTIFFS’ APPEAL
Plaintiffs briefly note that if their appeal is granted, Cottrell’s Bill of Costs is moot. (Doc.

122 at 1). Presumably, Plaintiffs are requesting that this Court stay the taxation of costs pending
results of the appeal. “No clear standard has developed to guide district courts in the exercise of
their discretion in deciding whether or not to stay the taxation of costs pending appeal.” Maytag
Corp. v. Electrolux Home Prods., Inc., No. C 04-4067 MWB, 2006 WL 8456956, at *2 (N.D.
Iowa Dec. 11, 2006); see also Blakley v. Schlumberger Tech. Corp., 648 F.3d 921, 930 (8th Cir.
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Cottrell does not appear to have included the interest charged for the Burdess deposition in its calculation.

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This calculation includes electronic transcript (“e-tran”) fees.

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“Professional Attendance” fees are included in this calculation.

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2011) (citation omitted) (Holding that because “costs are appealable separately from the merits,”
a court still has the power to award costs when an appeal on the merits is pending). Having
considered the merits of Cottrell’s Bill of Costs, this Court will direct the Clerk of Court to tax
costs but will further order that execution of such costs shall be stayed pending resolution of
Plaintiffs’ appeal. See Starr Indem. and Liab. Co. v. Cont’l Cement Co., No. 4:11-CV-809-JAR,
2013 WL 3154009, at *4 (E.D. Mo. Jun. 21, 2013).
Accordingly,
IT IS HEREBY ORDERED that Defendant Cottrell’s Motion for Bill of Costs (Doc.
117) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that the Clerk of Court shall tax costs against Plaintiffs
and in favor of Cottrell in the amount of $4,618.60.
IT IS FINALLY ORDERED that execution of this modified Bill of Costs shall be
STAYED pending the outcome of Plaintiffs’ appeal.
Dated this 25th day of March, 2022.
________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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