Redbird Business Group, LLC et al v. Harrison

Filing 201

OPINION AND ORDER by Magistrate Judge Jason A. Robertson granting 190 Defendant/Counterclaimant's Motion to Review Taxation of Costs. (jpc, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
REDBIRD BUSINESS GROUP, LLC;
REDBIRD BIOSCIENCE OKLAHOMA,
LLC; and RB REALTYCO, LLC,
Plaintiffs and
Counter-Defendants,
v.
MATTHEW HARRISON,
Defendant and
Counter-Claimant.

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Case No. CIV-20-098-JAR

OPINION AND ORDER
This

matter

comes

before

the

Court

on

Defendant/Counterclaimant’s Motion to Review Taxation of Costs
(Docket Entry #190).

This Court conducted a hearing to receive

oral argument on this Motion.
Counterclaimant seeks a court review of the denial of the
vast majority of the costs he requested in a Bill of Costs by the
Clerk of this Court.
Bill of Costs.

On April 14, 2023, Counterclaimant filed a

(Doc. No. 175).

He requested reimbursement in the

following general areas:
Fees for service

$

Fees for transcripts

$10,532.15

Fees for printing

$ 1,363.20

Total

445.00

$12,340.35

Accompanying
Counterclaimant’s

the

Bill

counsel,

of

Costs

Luke

was

Connelly,

a

Declaration

and

containing a breakdown of the claimed costs.

a

single

from
page

(Doc. No. 176).

Counterclaim Defendants filed a response, contesting the costs
requested.

The bases for the objection were that Counterclaimant

set out conclusory statements on the necessity for the incurrence
of the costs, a lack of specificity as to the need for the printing,
trial transcripts were only for the convenience of counsel and not
due to necessity, vague descriptions of the transcripts obtained,
charge for real time transcripts, which are not permitted costs,
and

the lack

of a

showing that depositions

obtained for use at trial.

were necessarily

(Doc. No. 179).

On May 26, 2023, the Clerk of Court entered an Order Taxing
Costs.

The Clerk determined that Counterclaimant had provided “no

receipts, invoices or other documentation in support of the Bill
of Costs.”

(Doc. No. 189, p. 1).

The Clerk agreed that the

Counterclaimant was the prevailing party but awarded only the costs
for service totaling $445.00.

Id.

Fed. R. Civ. P. 54 provides the basis for the recovery of
costs in stating
(d) Costs; Attorney's Fees.
(1) Costs Other Than Attorney's Fees. Unless
a federal statute, these rules, or a court
order provides otherwise, costs--other than
attorney's fees--should be allowed to the
prevailing party. But costs against the United
States, its officers, and its agencies may be
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imposed only to the extent allowed by law. The
clerk may tax costs on 14 days' notice. On
motion served within the next 7 days, the
court may review the clerk's action.
Fed. R. Civ. P. 54(d).
The local rules for this District provides further guidance
and requirements for the prevailing party to obtain costs.

EDOK

LCvR 54.1 provides
Costs.
(a) A prevailing party who seeks to recover
costs against an unsuccessful party
pursuant to 28 U.S.C. § 1920 shall file
a bill of costs on the form provided by
the Court Clerk and support the same with
a brief. The bill of costs and brief
shall be filed and served not more than
fourteen (14) days after entry of
judgment. The bill of costs and brief
shall be a separate document from the
motion for legal fees and its brief.
(b)

The original of the verified bill of
costs shall have endorsed thereon proof
of service upon the opposite party. The
prevailing party shall provide either
receipts, documents or an affidavit in
support of the requested itemized costs.
Objections to the allowance of costs must
be filed within fourteen (14) days from
the date the bill of costs was filed.

EDOK LCvR 54.1 (emphasis added by Court).
The Court will consider each category of costs for which
recovery is sought in turn.
1)

Reproduction Costs – Counterclaimant seeks to recovery

of the cost for reproducing some 11,360 documents.

Pursuant to 28

U.S.C. § 1920(3) and (4), the prevailing party may recover the
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costs of fees related to copying and printing. 28 U.S.C. § 1920(3)–
(4).

Fees for printing and copying must be “reasonably necessary

to the litigation of the case.”

Furr v. AT & T Technologies, Inc.,

824 F.2d 1537, 1550 (10th Cir.1987); see also Mitchell v. City of
Moore, 218 F.3d 1190, 1204 (10th Cir. 2000). Documents produced
“solely for discovery” do not meet this standard. In re Williams
Sec. Litig.-WCG Subclass, 558 F.3d 1144, 1148 (10th Cir. 2009)
(citing Furr, 824 F.2d at 1550).

Materials “merely ‘added to the

convenience of counsel’ or the district court” are not recoverable.
Id. at 1147–1148.

The “prevailing party bears the burden of

establishing the costs to which it is entitled.”

Cohlmia v. St.

John Med. Ctr., 693 F.3d 1269, 1288 (10th Cir. 2012) (citing
Allison v. Bank One-Denver, 289 F.3d 1223, 1248 (10th Cir. 2002)).
Additionally, the amount requested “must be reasonable.” Id.
Citing EDOK LCvR 54.1(b), Counterclaimant maintains that he
provided a declaration to justify the incurrence and reimbursement
of the copying of over 11,000 documents.

Indeed, counsel for

Counterclaimant provides a declaration appended to the original
Bill of Costs presented to the Clerk.

However, it merely contains

the regurgitated language of the case authority that all of the
costs set out in the Bill of Costs were “necessarily incurred in
the case.”

(Doc. No. 175, Exh. No. 1).

This is insufficient for

Counterclaimant to sustain his burden of demonstrating that the
copying costs were necessarily incurred without delving into the
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prohibited purposes stated in the case law.

There is simply no

way for the necessity to be determined from a declaration with
boilerplate language.
2)

Copying costs will, therefore, be denied.

Service Costs – These fees amounting to $445.00 are

uncontested and were awarded by the Clerk.
3)

Transcript Costs – Counterclaimant seeks reimbursement

for the deposition transcripts of witnesses Namish Patel, M.D.,
Joe Byars, William A. Thurman, Jack Weinstein, Stacy Wright, Rita
Bintliff, Tom Harrison, and Matt Harrison.

Counterclaimant also

seeks reimbursement for Realtime transcript amounting to $1,430.10
and “Ordinary Original and Ordinary 1st Copy of Transcript of
Proceedings” at a cost of $1,647.10.
For the expense of a transcript to qualify as a taxable cost,
the transcript must be “reasonably necessary to the litigation of
the case.”

Mitchell, 218 F.3d at 1204; see also In re Williams,

558 F.3d at 1148.

Reasonably necessary “does not mean that the

transcript must have been indispensable to the litigation to
satisfy this test; it simply must have been necessary to counsel's
effective performance or the court's handling of the case.” Burton
v. R.J. Reynolds Tobacco Co., 395 F. Supp. 2d 1065, 1078–79 (D.
Kan. 2005) (quoting 10 Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice & Procedure § 2677, at 438–40 (3d
ed. 1998))(internal quotations omitted).

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“[A] court must find

that daily copy was necessarily obtained, as judged at the time of
transcription.”

Id. at 1078.

Counterclaimant does not provide any basis for the extra
expense for Realtime transcripts or the “ordinary original” and
their incurrence is not obvious from the statement provided. These
costs will be disallowed.
Despite not providing an explanation for the eight deposition
transcripts, this Court would be ignoring the nature of these
proceedings in disallowing these costs.

The bench trial of this

case relied heavily upon deposition testimony, both at trial and
in the preparation of the proposed findings of fact and conclusions
of law ordered by this Court.

These depositions were crucial to

assist the Court and the parties in the presentation of evidence
and preparation of this Court’s Opinion and Order.

The cost of

these depositions in the amount of $7,454.95 will be permitted as
necessarily incurred.
IT

IS

THEREFORE

ORDERED

that

Defendant/Counterclaimant’s

Motion to Review Taxation of Costs (Docket Entry #190) is hereby
GRANTED.

Costs are awarded to Counterclaimant Matthew Harrison in

the total amount of $7,899.95.
IT IS SO ORDERED this 27th day of March, 2024.

______________________________
JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE
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