EEOC
Filing
670
MEMORANDUM AND ORDER that EEOC's Objection to JBS's Bill of Costs 579 is granted in part and denied in part. Costs are taxed against Plaintiff EEOC and in favor of Defendant JBS in the amount of $83,487.95 and are included in the judgment. Ordered by Chief Judge Laurie Smith Camp. (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
8:10CV318
Plaintiff,
vs.
MEMORANDUM AND ORDER
JBS USA, LLC,
Defendant.
This matter is before the court on Defendant JBS USA, LLC’s (“JBS”) Bill of
Costs (Filing No. 526), and Plaintiff Equal Employment Opportunity Commission’s
(“EEOC”) corresponding objection (Filing No. 578). For the reasons set forth below the
EEOC’s objection will be granted in part and denied in part.
BACKGROUND
The EEOC filed suit against JBS under Title VII of the Civil Rights Act of 1964
and Title I of the Civil Rights Act of 1991 alleging JBS engaged in unlawful employment
practices by discriminating on the basis of religion, national origin, and race. (Filing No.
5). The EEOC requested injunctive relief against JBS and also sought monetary relief
for several individual employees of JBS – all of whom are from Somalia and are
practicing Muslims. The litigation was bifurcated with Phase I addressing claims based
on JBS’s alleged pattern or practice of religious discrimination and Phase II addressing
individual claims for relief.
A bench trial on the Phase I claims was held on May 7-17, 2013. This Court
entered Findings of Fact and Conclusions of Law in favor of JBS. (Filing No. 516.) JBS
filed a Bill of Costs seeking recovery of taxable costs under 28 U.S.C. § 1920. (Filing
No. 526.) A ruling on the Bill of Costs was stayed until the post-trial motions were
resolved. (Filing No. 530.) A final Judgment was entered on January 27, 2014. After the
numerous post-trial issues were resolved, the EEOC filed a partial objection to the Bill of
Costs. (Filing No. 579.)
ANALYSIS
“Under Federal Rule of Civil Procedure 54(d)(1), costs other than attorneys’ fees
are to be awarded to the prevailing party unless the court directs otherwise.” Janis v.
Biesheuvel, 428 F.3d 795, 801 (8th Cir. 2005). “The losing party bears the burden of
overcoming the presumption that the prevailing party is entitled to costs . . . .” 168th
and Dodge, LP v. Rave Reviews Cinemas, LLC, 501 F.3d 945, 958 (8th Cir. 2007). So
long as the costs are taxable under 19 U.S.C. § 1920, the court is not required to
provide a detailed explanation of every cost it awards to the prevailing party. Craftsmen
Limousine, Inc. v. Ford Motor Co., 579 F.3d 894, 896-97 (8th Cir. 2009).
Pursuant to 28 U.S.C. § 1920 a judge or clerk of the court may tax:
(1)
(2)
(3)
(4)
(5)
(6)
Fees of the clerk and marshal;
Fees for printed or electronically recorded transcripts necessarily
obtained for use in the case;
Fees and disbursements for printing and witnesses;
Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the
case;
Docket fees under section 1923 of this title;
Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.
The Bill of Costs Handbook for the United States District Court for the District of
Nebraska (the “Handbook”), applies the provisions of 28 U.S.C. § 1920 and provides
2
guidance for the litigants when seeking to obtain taxable costs. While the Handbook is
not binding, it is instructive regarding the types of costs the Court will normally tax.
The EEOC has objected to many of JBS’s claimed costs. Each of the objections
will be addressed in turn below.
A.
Ripeness
The EEOC argues the Court should not rule on Defendant’s Bill of Costs
because it is premature and litigation in this matter is still pending. In essence, the
EEOC is asking the Court to exercise its discretion and stay the taxation of costs until
the Phase II litigation is complete. The Court declines to do so. Fed R. Civ. P. 54
provides costs “should be allowed to the prevailing party.” A “prevailing party” for the
purposes of Rule 54 is a party that has “received at least some relief on the merits”
Shum v. Intel Corp., 629 F.3d 1360, 1367 (Fed. Cir. 2010). For instance, when a
defendant avoids a finding of liability and receives a judgment in its favor it is a
prevailing party. See Shum, 629 F.3d at 1368.
In this case, JBS is clearly a prevailing party for the purposes of Fed. R. Civ. P.
54. It was entirely successful in defending the Phase I claims and received a final
judgment accordingly, avoiding all of the relief sought by the EEOC. This Court routinely
assesses costs without delay once a final judgment has been issued.
See, e.g.,
Barnhardt v. Open Harvest Co-op, No. 4:12cv3156, 2013 WL 451256, *2 (D. Neb.
August 13, 2013). The issues of costs for the Phase I proceedings are ripe for
3
adjudication and the court need not delay in assessing costs1 until the conclusion of the
Phase II litigation.
B.
Video depositions
JBS seeks $43,757.53 in fees for printed or electronically recorded transcripts.
(Filing No. 526). These fees consist of costs associated with stenographic deposition
transcripts and four videotaped depositions used at trial. JBS also seeks $20,372.00 in
costs associated with seventeen videotaped depositions not used at trial.2 The EEOC
objects to these costs and argues JBS may not recover costs for both stenographic
deposition transcripts and the costs associated with the video recording of the same
deponents.
28 U.S.C. § 1920(2) permits the taxation of “fees for printed or electronically
recorded transcripts necessarily obtained for use in the case.” The EEOC asserts the
plain language of the statute prevents JBS from recovering costs for both printed and
electronically recorded transcripts. The weight of authority holds to the contrary. That
is, where the prevailing party demonstrates both paper and electronic copies were
reasonably necessary, the court may tax costs for both where they are reasonably
necessary for use in the case.3
See In re Ricoh Co., Ltd. Patent Litigation, 661 F.3d
1
While the Court will not delay in assessing costs, the parties may elect or agree to defer the
actual collection or payment of the costs until after Phase II litigation is complete. That issue is not before
the Court.
2
The itemization of the video deposition fees for witnesses who did not testify at trial appear on
JBS’s Bill of Costs as an “other cost.” (Filing No. 526-7 at CM/ECF pp. 1-2).
3
The EEOC cites to Craftsman, 579 F.3d at 897, in support of its argument that a successful
party may not recover costs of both a written transcript and videotaped deposition. Craftsman addressed
a different issue. Before 28 U.S.C. § 1920(2) was amended to allow for recovery of costs associated with
electronically recorded transcripts, there was some debate on whether costs associated with videotaping
4
1361, 1370 (Fed. Cir. 2011); State Farm Fire & Cas. Co. v. King Sports, Inc., 841 F.
Supp. 2d 1317, 1320 (N.D. Ga. 2012); Baisden v. I’m Ready Productions, Inc., 793 F.
Supp. 2d 970, 976-77 (S.D. Texas 2011).4
The Handbook is consistent with the
majority of court decisions, and allows for the taxation of costs for printed and electronic
transcripts. The Handbook, § 4(C)(3).
JBS contends both video and paper transcripts were necessary in this case for
the Somali-speaking witnesses because they were listed as potential testifying
witnesses and they neither read nor spoke English, making electronic recordings of
depositions necessary for cross-examination purposes.
JBS further argues that under
Fed. R. Civ. P. 32(c) it was required to provide copies of the written transcripts of any
video depositions offered as evidence at trial; thus, making the written transcripts
reasonably necessary as well.
The Court agrees with JBS. JBS obtained printed transcripts and electronically
recorded depositions for those Somali-speaking deponents who were potential
witnesses at trial.
At the time the potential witnesses were deposed, JBS was
reasonable to believe both electronic recordings and paper transcripts of the
a deposition were recoverable at all. Craftsman held that they were. Id. It did not address the question of
whether costs for both written transcripts and videotaping were recoverable, and the Eighth Circuit has
not yet weighed in on the issue.
4
A minority of district courts have held the “or” in 28 U.S.C. § 1920 should be read in the
exclusive sense, completely foreclosing the possibility of recovering for both written transcripts and costs
for videotaping depositions. See, e.g., Lift Truck Lease and Service, Inc. v. Nissan Forklift Corp, North,
2013 WL 6331578, *2 (E.D. Mo. 2013) (finding the plain language of the statute prohibits the possibility of
recovering costs of both a written transcript and a video deposition). However, the Court believes the
better reading of the word “or” is in the inclusive sense. See Smith v. United Television, Inc. Special
Severance Plan, 474 F.3d 1033, 1037-38 (8th Cir. 2007) (explaining, under certain circumstances, the
word “or” may be interpreted as conjunctive rather than disjunctive). Particularly since 28 U.S.C. § 1920 is
generally intended to allow successful parties to recover costs reasonably necessary for litigation.
5
depositions could be necessary for use in the case, and specifically at trial.5 The video
depositions were needed for cross-examination purposes because the deposition
transcripts were in English and could not be used effectively to cross-exam the nonEnglish speaking witnesses. As noted by JBS, Fed. R. Civ. P. 32(c) requires a party to
provide the written transcript of any deposition testimony a party intends to offer.
Likewise, this Court’s local rules contemplate the need for transcripts of video
depositions. See, e.g., NECivR 32.1 (requiring a party to provide written transcripts of
video depositions to contest motions in limine). Accordingly, the Court will exercise its
discretion and allow costs associated with both formats, with one exception.
The only non-Somali-speaking witness for whom JBS seeks costs of both the
written transcript and electronic recording is James Hamilton. Mr. Hamilton appeared
on JBS’s witness list, indicating at least a chance his testimony would be required. Mr.
Hamilton also resides outside the district of Nebraska and JBS argues it did not know if
Mr. Hamilton would appear at trial. Even if true, JBS does not explain why both the
video and a written transcripts were reasonably necessary for the case at the time Mr.
Hamilton was deposed. While JBS may have preferred to play a video deposition, it
could also have simply read his transcript into the record.
The language barriers
present with the Somali-speaking witnesses were not present with Mr. Hamilton. The
Court will reduce JBS’s Bill of Costs in the amount of $475, representing the cost of Mr.
Hamilton’s videotaped deposition. (Filing No. 526-7 at CM/ECF p. 2.)
C.
Costs Associated with Delivery and Format
5
It does not matter that only four of the witnesses actually testified at trial. At the time the
depositions were taken it was reasonable for JBS to anticipate testimony of all of the Somali-speaking
witnesses might be necessary.
6
JBS seeks fees associated with the costs for delivery of the transcripts. Those
fees are not recoverable in the 8th Circuit. See Smith v. Tenet Healthsystem SL, Inc.,
436 F.3d 879, 888 (8th Cir. 2006). Accordingly, JBS’s request for costs associated with
fees for printed or electronically recorded transcripts will be reduced by $947.74. (Filing
No. 580-1 at CM/ECF p. 6.) Further, its request for fees associated with video recorded
depositions for witness who did not appear at trial – represented as “other costs” on its
Bill of Costs – will be reduced by $52.00, the fees charged for delivery of the video
recorded depositions of Ahmed Dalmar and Abdiaziz Yusef, (Filing No. 526-7 at
CM/ECF p. 5), and Sirad Adan; Deq Said; Muhamed Ukash Ali; and Hassan Duwane,
(Filing No. 526-7 at CM/ECF p. 7).
D.
Costs per page
The EEOC alleges JBS is not entitled to recover more than $3.65 per page – the
rate recommended by the Judicial Conference.
The EEOC argues the court reporters
charged excessive per page fees in the total amount of $1,371.31.
Based on the
complexity and the additional time required, the Court finds the per page fees charged
by the court reporters were reasonable.
E.
Interpreters’ Compensation
1.
Costs for Trial Interpretation
The parties filed a stipulation prior to trial which provides: “The parties agree to
split the costs of the in-court interpreters by each paying the costs associated with one
Somali and one Spanish interpreter.” (Filing No. 476, ¶4 at CM/ECF p. 2.) Plaintiff
argues this precludes Defendant from recovering the full amount of the compensation
paid to the interpreters.
7
The Court agrees. The stipulation states the parties will split the costs of the incourt interpreters. Had Defendant wished to reserve its right to recover interpreter costs
under 28 U.S.C. §1920(6) and Fed. R. Civ. P. 54, it could have included terms in the
stipulation accordingly. It did not. See In re Ricoh Co., Ltd., 661 F.3d at 1366-67.
Therefore, Defendant’s attempt to recover the entire cost the trial interpreters’ costs will
be disallowed.6
2.
Costs for Interpreters for witness depositions
Defendant initially sought recovery of $34,091.34 in costs paid to “[i]nterpreters
for witness interviews and depositions.” (Filing No. 526-7 at CM/ECF p. 1.) Plaintiff
objected, asserting fees for the interpretation of witness interviews are not recoverable,
travel expenses for interpreters are not recoverable, and at least one interpreter
overcharged for his services. Defendant responded by acknowledging it improperly
sought recovery of interpreter fees associated with interviews and translation of
documents.
Defendant reduced its Bill of Costs by $15,745.93, but asserted the
remaining $18,345.07 in interpreters’ fees and expenses are recoverable.
An interpreter’s “compensation” is a recoverable cost under 28 U.S.C. § 1920(6).
The parties disagree on whether “compensation” includes the fees and expenses
associated with an interpreter’s travel. Plaintiff asserted a general objection to JBS’s
request for the costs attributable to the travel expenses interpreters. JBS argues that
interpreter travel costs in cases, such as this one, where a traveling interpreter is
6
As explained infra, the Court believes an interpreter’s fees and expenses – i.e. interpretation
fees and travel expenses – are best considered as one expense, whether referred to as “costs” under the
parties’ stipulation or “compensation” under 28 U.S.C. § 1920(6).
8
necessary, are best considered part of an interpreter’s “compensation” and recovery is
appropriate under 28 U.S.C. 1920(6). The Court agrees with JBS.
Logic dictates that reimbursement of the expenses incurred by the
interpreters is a part of the overall compensation paid to the interpreter.
Defining “compensation” narrowly so that it encompasses only that portion
of the remuneration paid to an interpreter for the interpretation service
alone, while excluding reimbursement of the necessary and reasonable
“expenses” incurred by the interpreter to travel to the location for the
purpose of performing those interpretation services, would unreasonably
split statutory hairs. The more reasonable interpretation of the statutory
phrase “compensation of interpreters” is to include all of the expenses
billed by the interpreter and paid by the party for the interpreter's services,
including reasonable travel expenses, parking, and meals that were
reasonably necessary in connection with the provision of services.
Hynix Semiconductor, Inc. v. Rambus, Inc., 697 F. Supp. 2d 1139, 1154-55 (S.D. Ca.
2010).
Thus, Plaintiff’s objection to the inclusion of the interpreters’ travel expenses is
overruled.
The Court has reviewed the remaining expenses associated with the
interpretation of depositions and finds nothing inappropriate or unreasonable regarding
the time or rates billed by the various interpreters. Plaintiff will be assessed costs in the
amount of $18,345.07.
F.
Private Delivery and Service of Subpoenas
JBS seeks recovery for $207.50 it paid for service of subpoenas by a private
process server. These fees are not recoverable. The Handbook, §IV(B)(3). Likewise
the cost of the privately incurred postage fees of $66.53 are also not recoverable.
Based on the foregoing, Defendants’ Bill of Costs will be adjusted as follows:
Fees for service of summons and subpoena
Fees for transcripts
0.00
$42,809.79
9
Fees for witnesses
$1,999.75
Fees for exemplification
$323.00
Docket fees
$165.00
0.007
Compensation for Trial Interpretation
Other Costs
$38,190.418
Total
$83,487.95
Accordingly,
IT IS ORDERED:
1.
EEOC’s Objection to JBS’s Bill of Costs, (Filing No. 579), is granted in part
and denied in part; and
2.
Costs are taxed against Plaintiff EEOC and in favor of Defendant JBS in
the amount of $83,487.95 and are included in the judgment.
Dated this 11th day of May, 2015
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
7
It is not clear to the Court how the interpreters were actually paid. That is, if one of the parties
paid the entire invoiced amount or if the parties actually paid their respective halves of the trial
interpretation compensation separately. If the Defendant previously paid the full amount due, of course it
is entitled to receive the portion of the costs owed by the Plaintiff. But that is a matter of contract under
the stipulation and not governed by the Bill of Costs.
8
This amount includes $19,845.00 in video depositions and $18,345.41 in interpreters’
compensation.
10
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