Dean v. Gage County, Nebraska, et al

Filing 614

MEMORANDUM AND ORDER that in Case No. 4:09CV3144, costs are taxed in favor of Plaintiff James L. Dean and against Defendants Burdette Searcey, Wayne Price, and Gage County, jointly and severally, in the amount of $350.00. In Case No. 4:09CV31 45, costs are taxed in favor of Plaintiff Lois P. White, as Personal Representative of the Estate of Joseph White, Deceased, and against Defendants Burdette Searcey, Wayne Price, and Gage County, jointly and severally, in the amount of $378.00. In Case No. 4:09CV3146, costs are taxed in favor of Plaintiff Kathleen A. Gonzalez and against Defendants Burdette Searcey, Wayne Price, and Gage County, jointly and severally, in the amount of $378.00. In Case No. 4:09CV3147, costs are taxed in favor of Plaintiff Thomas W. Winslow and against Defendants Burdette Searcey and Gage County, jointly and severally, in the amount of $371.00. In Case No. 4:09CV3148, costs are taxed in favor of Plaintiff Ada Joann Taylor and against Defenda nts Burdette Searcey, Wayne Price, and Gage County, jointly and severally, in the amount of $378.00. Judgments shall be entered by separate documents in each of the aforesaid cases. Member Cases: 4:09-cv-03144-RGK-CRZ et al.Ordered by Senior Judge Richard G. Kopf. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES L. DEAN,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.
LOIS P. WHITE, as Personal
Representative of the Estate of
Joseph White, deceased,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.
KATHLEEN A. GONZALEZ,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.
THOMAS W. WINSLOW,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.
ADA JOANN TAYLOR,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.
DEBRA SHELDEN,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.

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4:09CV3144

4:09CV3145

4:09CV3146

4:09CV3147

4:09CV3148

4:11CV3099

MEMORANDUM AND ORDER

This matter is before the court on Plaintiffs’ Bills of Costs (Filing Nos. 564,
592) and Defendants’ Objections thereto (Filing Nos. 591, 607).1
Plaintiffs Lois P. White, as Personal Representative of the Estate of Joseph
White, Deceased (Case No. 4:09CV3145), Kathleen A. Gonzalez (Case No.
4:09CV3146), Thomas W. Winslow (Case No. 4:09CV3147), and Ada Joann Taylor
(Case No. 4:09CV3148) request that costs be taxed in the amount of $420.00 in each
of their cases for filing fees ($350.00) and service of summonses ($70.00). (Filing No.
564.) “The Defendants do not object to $350 filing fee of the Plaintiffs or the service
costs for serving the Summons and Complaints on Defendants Searcey, the County
of Gage, and Price as to Plaintiffs White, Taylor, and Gonzalez.” (Filing No. 591 at
CM/ECF pp. 2-3.) However, Defendants do object “to paying the service fees for the
Summons and Complaint for Defendants Gage County Attorney Office, Gage County
Sheriff’s Office, Richard Smith, Kent Harlan, Mark Meints, and Jerry DeWitt, and to
Defendant Price as to Plaintiff Winslow’s case” because “Plaintiffs did not prevail
against these Defendants.” (Filing No. 591 at CM/ECF pp. 2-3.) This objection is
well-taken, and the court will disallow the $7 service fee for the parties named above.
Plaintiff James L. Dean (Case No. 4:09CV3144) requests that costs be taxed in
the amount of $10,797.48,2 itemized as follows:
Fees of the clerk
Fees for transcripts

$ 800.00
7,239.70

1

All record references are to filings in the lead case, Case No. 4:09CV3144. No
Bill of Costs was filed on behalf of Plaintiff Debra Shelden in Case No. 4:11CV3099.
2

Dean’s counsel, Herbert J. Friedman, states in a footnote to his supporting
affidavit that “[a]s these costs were a portion of the costs/expenses presented to the
Court in support of Plaintiff James Dean’s portion of the Application for Attorneys’
Fees, (see Doc. 567-6), Plaintiff Dean would hereby reduce the request for the
expenses portion of that Application in proportion to the amount actually taxed
pursuant to 28 U.S.C. § 1920.” (Filing No. 592-1 at CM/ECF p. 2.)
2

Fees for service of summonses and subpoenas
Fees for witnesses
Fees for exemplification
Other costs

183.23
620.70
1,078.62
875.23

(Filing No. 592.)3
Plaintiff Dean’s records show he paid a $350.00 filing fee on July 14, 2009, and
a $455.00 appellate filing fee on August 30, 2011. (Filing No. 592-1 at CM/ECF pp.511.) However, the appellate filing fee was previously taxed. (See Filing Nos. 146,
150.) Only the $350 filing fee will be allowed.
The requested transcript fees are for the cost of depositions that were taken
between August 18, 2010, and January 24, 2014. (See Filing No. 592-1 at CM/ECF
pp. 24-47.) Defendants object to taxing the cost of “any depositions taken between
August 9, 2010, and January 15, 2013, with the exception of the deposition of Jerry
DeWitt which was taken on January 17, 2012,” for the reason that such deposition
“were not taken for the purpose of this case but for the purpose of the wrongful
conviction case that was filed in State court.” (Filing No. 607 at CM/ECF pp. 2-3.)
This objection is well-taken. Accordingly, the court will disallow the following court
reporter fees as being unrelated to Case No. 4:09CV3144:
08/18/2010
09/15/2010
11/03/2010
12/10/2010
01/24/2011
11/18/2011

$ 1,362.88
602.40
203.00
187.94
932.94
151.50

(Filing No. 592-1 at CM/ECF p. 25.)
(Filing No. 592-1 at CM/ECF p. 26.)
(Filing No. 592-1 at CM/ECF p. 27.)
(Filing No. 592-1 at CM/ECF p. 28.)
(Filing No. 592-1 at CM/ECF p. 29.)
(Filing No. 592-1 at CM/ECF p. 30.)

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With the exception of the “fees for witnesses” category, Plaintiff has not
bothered to list the individual cost items, but has merely attached copies of invoices
and checks. (The “fees for witnesses” listing, however, includes a $40.00 payment to
Richard Schmelling that is not supported by any documentation. See Filing No. 592-1
at CM/ECF p. 49.)
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11/30/2011
12/15/2011
12/29/2011

273.02
318.60
375.57

(Filing No. 592-1 at CM/ECF p. 31.)
(Filing No. 592-1 at CM/ECF p. 32.)
(Filing No. 592-1 at CM/ECF p. 32.)

(See Filing No. 607 at CM/ECF pp. 3-4.) These fees total $4,407.85. Two payments
made to court reporters were for witness fees and mileage for depositions that do not
relate to Case No. 4:09CV3144. (Filing No. 607 at CM/ECF p. 3; Filing 592-1 at
CM/ECF pp 22-23.) Those costs, totaling $96.00, are not taxable.
As to the remaining depositions, Defendants object that Plaintiff Dean has not
made a required showing that they were “reasonably necessary to the development of
the case at the time the deposition was taken.” Bill of Costs Handbook. p.5. While
some of the depositions clearly satisfy this standard (e.g., depositions of individuals
listed on a trial witness list, see id.), the court finds it unnecessary to undertake any
further examination in this case because Plaintiff is seeking to recover the same court
reporter fees in a Motion for Attorney Fees and Expenses (Filing No. 665). Because
court reporter fees will be awarded by the court in connection with that motion, they
will not be taxed as costs.
Plaintiff Dean has requested $183.23 for service of summonses and subpoenas,
but the attached invoices total $300.17. (See Filing No. 592-1 at CM/ECF pp. 12-23.)
This total does not include any fees for services of summonses, but instead includes
fees for certified mail service of subpoenas, witness fees and mileage. Some of these
costs related to depositions that were not taken in relation to Case No. 4:09CV3144
(see Filing No. 607 at CM/ECF p. 3; Filing 592-1 at CM/ECF p. 13), and it appears
that some of the costs were paid by other Plaintiffs. The court will not tax any costs
for this category, but will review duplicate requests for payment in connection with
Plaintiff’s Motion for Attorney Fees and Expenses.
Regarding other witness fees, Defendants object to reimbursing Plaintiff Dean
for “fees he paid to Kim Perkins for her vacation days from work in the amount of
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$144.00 on July 14, 2016, and possibly in the amount of $125.84 on December 20,
2013.” (Filing No. 607 at CM/ECF p. 8.) These amounts will not be taxed as costs.
Defendants also object to witness fees totaling $258.36, that were paid to three
individuals who did not testify. (See Filing No. 607 at CM/ECF p. 9.) This amount
will not be taxed as costs.
Although the Bill of Costs states the witness fees totaled $620.70, the checks
attached to the Bill of Costs total $1,275.38. (See Filing No. 592-1 at CM/ECF pp. 5069.) Because the court is unable to determine whether the non-taxable witnesses fees
are included within the $620.70 claimed, and because Plaintiff has also requested
reimbursement of witness fees in the Motion for Attorney Fees and Costs, no witness
fees will be taxed as costs and the matter will be taken up in connection with the
Motion for Attorney Fees and Costs.
The fees for exemplification include three bills from FedEx/Kinkos that total
$578.75, and a $499.87 bill from Dubas & Associates. Defendants object to these
items because Plaintiff has not shown what the charges relate to. (See Filing No. 607
at CM/ECF p. 9.) The objection is well-taken. Again, however, Plaintiff Dean has
submitted a duplicate request for payment in the Motion for Attorney Fees and Costs.
Finally, Plaintiff Dean claims “other costs” of $875.23 that are not identified
but appear from the attached checks to include appellate filing fees that have already
taxed as costs, the cost of printing briefs that should have been submitted to the Court
of Appeals, and costs associated with state court proceedings. These are not taxable.
Accordingly,
IT IS ORDERED:

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1.

In Case No. 4:09CV3144, costs are taxed in favor of Plaintiff James L.
Dean and against Defendants Burdette Searcey, Wayne Price, and Gage
County, jointly and severally, in the amount of $350.00.

2.

In Case No. 4:09CV3145, costs are taxed in favor of Plaintiff Lois P.
White, as Personal Representative of the Estate of Joseph White,
Deceased, and against Defendants Burdette Searcey, Wayne Price, and
Gage County, jointly and severally, in the amount of $378.00.

3.

In Case No. 4:09CV3146, costs are taxed in favor of Plaintiff Kathleen
A. Gonzalez and against Defendants Burdette Searcey, Wayne Price, and
Gage County, jointly and severally, in the amount of $378.00.

4.

In Case No. 4:09CV3147, costs are taxed in favor of Plaintiff Thomas
W. Winslow and against Defendants Burdette Searcey and Gage County,
jointly and severally, in the amount of $371.00.

5.

In Case No. 4:09CV3148, costs are taxed in favor of Plaintiff Ada Joann
Taylor and against Defendants Burdette Searcey, Wayne Price, and Gage
County, jointly and severally, in the amount of $378.00.

6.

Judgments shall be entered by separate documents in each of the
aforesaid cases.

September 6, 2016.

BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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