Aly v. Hanzada for Import & Export Company, LTD

Filing 226

ORDER - The Court awards Aly $2,310.28 in costs. Signed on 8/30/17 by Chief District Judge Greg Kays. (Strodtman, Tracy)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
HASSANIN ALY,
Plaintiff,
v.
HANZADA for IMPORT & EXPORT
COMPANY, LTD.,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 5:12-CV-06069-DGK

ORDER DETERMINING COSTS
This case involved a contract dispute between Defendant Hanzada for Import & Export
Company, LTD., (“Hanzada”), and Plaintiff Hassanin Aly (“Aly”). After a trial, a jury found in
favor of Aly. (Doc. 149).
Now before the Court is Aly’s Bill of Costs seeking $2,310.28 (Doc. 221).1

No

objections were filed. For the following reasons, the Court awards Aly $2,310.28 in costs.
Standard
Rule 54(d)(1) provides that “[u]nless 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). A district court “has discretion in determining and awarding
costs in a given case.” Pershern v. Fiatallis N. Am., Inc., 834 F.2d 136, 140 (8th Cir. 1987); see
Marx v. Gen. Revenue Corp., 568 U.S. 371, 377 (2013) (“[T]he word ‘should’ makes clear that
the decision whether to award costs ultimately lies within the sound discretion of the district
court.”).

But, the “prevailing party is presumptively entitled to recover all of its costs.”

Thompson v. Wal-Mart Stores, Inc., 472 F.3d 515, 517 (8th Cir. 2006). The prevailing party
1

The Court notes Aly filed a bill of costs shortly after judgment was entered (Doc. 150) but an order was never
entered. The costs included in the first bill of costs appear included in the bill of costs addressed in this order.

bears the burden of persuading the court that the items and amounts sought are compensable
under 28 U.S.C. § 1920 or some other authority. Combs v. Cordish Cos., No. 14-0227-CV-ODS,
2015 WL 5096009, at *1 (W.D. Mo. Aug. 28, 2015).
The court’s power to tax costs under § 1920 is limited to the items enumerated in the
statute.

Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 2006 (2012).

“Costs” are

construed narrowly under the statute. The Supreme Court has cautioned that “[a]lthough ‘costs’
has an everyday meaning synonymous with ‘expenses,’” taxable costs “are a fraction of the
nontaxable expenses borne by litigants for attorneys, experts, consultants, and investigators.” Id.
Section 1920 identifies six expenses that may be taxed as costs. Five of these are
applicable to the present case: (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;” and (4) “Docket fees under section 1923(a).” 28
U.S.C. § 1920.
Discussion
The Court finds all of the costs Aly submitted are compensable and discusses each in
turn. First, Aly seeks $550.00 for fees to the Clerk of Court consisting of $350.00 for the filing
fee, and $200.00 for Pro hac vice fees. Both fees are compensable. The filing fee is a taxable
cost under § 1920(1) and pro hac vice fees are recoverable costs under Eighth Circuit case law.
Craftsmen Limousine, Inc. v. Ford Motor Co., 579 F.3d 894, 898 (8th Cir. 2009) (holding pro
hac vice fees are taxable costs).
Second, Aly seeks $1,463.40 in transcripts consisting of $1,008.00 for a deposition
transcript, $104.40 for transcript of a portion of the trial, and $351.00 for a transcript of the pretrial conference and a transcript of a portion of the trial.

2

In determining whether the cost of a deposition is compensable under § 1920, the
relevant question is not whether the deposition was used at trial but whether it “reasonably
seemed necessary at the time [it] w[as] taken.” Zotos v. Lindbergh School Dist., 121 F.3d 356,
363 (8th Cir. 1997). It appears from the record this deposition was reasonably necessary at the
time it was taken. Accordingly, the cost is compensable.
Trial transcripts for counsel’s convenience are not taxable, E.E.O.C. v. Hibbing Taconite
Co., 2010 WL 4237318, at *3 (D. Minn. Oct. 21, 2010), however, if the transcripts are necessary
to respond to post-trial motions, the cost is taxable. Jo Ann Howard & Assocs., P.C. v. Cassity,
No. 09CV01252–ERW, 2015 WL 7422199, at *6 (E.D. Mo. Nov. 20, 2015). Here, the parties
actively engaged in post-trial motions and as a result, the Court finds the transcripts were
necessary, not a convenience. Thus, the cost is taxable.
Third, Aly seeks $147.63 for mileage expenses associated with witness travel. Fees for
witnesses are compensable under § 1920(3). See also 28 U.S.C. § 1821(c)(4); Nelson v. Darragh
Co., 120 F.R.D. 517, 519 (W.D. Ark. 1988).
Fourth, Aly seeks $20.00 for docket fees under 28 U.S.C. § 1923(a) which is
compensable because it is listed under § 1920(5).
Finally, Aly seek $ 129.25 in costs that were granted by the Court of Appeals and shown
on the mandate.
Rule 39 of the Federal Rules of Appellate Procedure addresses when costs on appeal may
be assessed against a party. Applicable to the present case, if judgment is affirmed, “costs are
taxed against the appellant.” Fed. R. App. P. 39(a)(2). In order “to secure the costs mentioned in
Rule 39(e), the prevailing party must make a separate application to the district court after the

3

mandate has been received from the court of appeals.” St. John's Mercy Med. Ctr. v. Delfino,
No. 4:02CV01527 ERW, 2006 WL 5363180, at *3 (E.D. Mo. Mar. 29, 2006).
Hanzada appealed this case to the Eighth Circuit, which affirmed. See Aly v. Hanzada for
Imp. & Exp. Co., LTD, 864 F.3d 844 (8th Cir. 2017). The mandate was returned on May 18,
2017. Thus, these costs are taxable against Hanzada.
Conclusion
Based on the foregoing reasons, the Court awards Aly $2,310.28 in costs.
IT IS SO ORDERED.
Date: August 30, 2017

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

4