Bryant v. ISHPI Information Technologies Inc et al

Filing 49

ORDER granting $1,858.10 in costs re 46 Bill of Costs, filed by Alanna Martin, Mike Beadle, ISHPI Information Technologies Inc, Earl Bowers, Claire Murchison Signed by Honorable David C Norton on March 3, 2020. (kwhe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
JAMES BRYANT, PH.D.,

)
)
Plaintiff,
)
)
vs.
)
)
ISHPI INFORMATION TECHNOLOGIES )
INC., MIKE BEADLE, EARL BOWERS, )
ALANNA MARTIN, and CLAIRE
)
MURCHISON,
)
)
Defendants.
)
____________________________________)

No. 2:18-cv-00433-DCN
ORDER

This matter is before the court on defendant ISHPI Information Technologies,
Inc., Mike Beadle, Earl Bowers, Alanna Martin, and Claire Murchison’s (collectively,
“defendants”) submission of a bill of costs for $1,940.60, ECF No. 46. Plaintiff James
Bryant, Ph.D. (“Bryant”) objects to the costs.
“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.” Fed. R. Civ. P.
54(d)(1). Rule 54(d)(1) creates a presumption “that costs are awarded to the prevailing
party.” Keeshan v. Eau Claire Coop. Health Centers, Inc., 394 F. App’x 987, 997 (4th
Cir. 2010). However, “while Rule 54(d)(1) intends the award of costs to the prevailing
party as a matter of course, the district court is given discretion to deny the award.”
Cherry v. Champion Int’l Corp., 186 F.3d 442, 446 (4th Cir. 1999). “To overcome the
presumption [of awarding costs], a district court must justify its decision [to deny costs]
by articulating some good reason for doing so.” Id. A district court’s decision to award
or deny costs is reviewed for abuse of discretion. Id.

1

Defendants prevailed in this action, having judgment entered in their favor
pursuant to the court’s order affirming the magistrate judge’s report and recommendation
and granting defendants’ motion for summary judgment. Bryant argues that an award of
defendants’ costs should be denied because Bryant “presented valid and viable arguments
at every stage of the case.” ECF No. 47 at 2. Bryant also argues that any costs for
transcripts are unnecessary because the case didn’t go to trial, that defendants improperly
request costs for the deposition of defendants despite only using portions of the
transcripts in their motion for summary judgment and asking no questions at the
depositions, and that defendants are not entitled to copy costs, attendance fees, or scanned
exhibit fees from the depositions.
Turning to Bryant’s first objection, a party’s good faith in bringing a viable legal
claim “standing alone[ ] is an insufficient basis for refusing to assess costs against that
party.” Id. Therefore, Bryant’s presentation of “valid and viable arguments” does not
convince the court that it should deny costs to defendants.
As for Bryant’s second objection, “[a] district court should award costs when the
taking of a deposition is reasonably necessary at the time of its taking.” LaVay Corp. v.
Dominion Fed. Sav. & Loan Ass’n, 830 F.2d 522, 528 (4th Cir. 1987). “In order for the
deposition to be necessary, it needs only to be relevant and material for the preparation in
the litigation.” Francisco v. Verizon S., Inc., 272 F.R.D. 436, 442–43 (E.D. Va. 2011).
Indeed, the deposition does not even have to be used in a motion for dispositive relief.
Id. at 443. “Additionally even if it is not used at trial, a deposition taken within the
proper bounds of discovery is normally deemed to be necessarily obtained for use in the
case.” Signature Flight Support Corp. v. Landow Aviation Ltd. P’ship, 730 F. Supp. 2d

2

513, 531 (E.D. Va. 2010), aff’d sub nom. 442 F. App’x 776 (4th Cir. 2011) (internal
quotations omitted).
Here, defendants took the deposition of Bryant, and Bryant took the deposition of
the three individual defendants. In their motion for summary judgment, defendants cited
to every deposition. After review of the record and issues in this case, the court finds that
these depositions were reasonably necessary because the depositions were relevant and
material to this litigation. Bryant argues that the depositions were unnecessary because
“[t]he matter did not go to [trial] and the transcripts as presented were not necessary as
defined by the Rules.” ECF No. 47 at 2. However, 28 U.S.C. § 1920 permits recovery of
costs for deposition transcripts obtained “for use in the case.” The statute does not
distinguish between use at trial and use for dispositive motions, nor does it require use of
the entire transcript in a dispositive motion. Therefore, the court finds that the
depositions were reasonably necessary and awards costs to defendants for the deposition
transcripts.
Bryant also argues that if the court determines that defendants are entitled to
recover costs of the deposition transcripts, then defendants should only recover the cost
of the original transcripts and not the copies. However, this position was squarely
rejected in Principe v. McDonald’s Corp., in which the court permitted the recovery of
the cost of both the original and copies of the deposition transcripts. 95 F.R.D. 34, 37
(E.D. Va. 1982); see also Int’l Wood Processors v. Power Dry, Inc., 598 F. Supp. 299,
305 (D.S.C. 1984), aff’d, 792 F.2d 416 (4th Cir. 1986) (“Costs for copies of deposition
transcripts . . . are allowed under § 1920(2) as part of the stenographic transcript which is
necessary for the effective preparation of the trial, as opposed to being a mere luxury or

3

convenience.”). Therefore, the court permits recovery of the cost of the deposition
transcript copies.
Bryant next contends that the deposition attendance fees and scanned exhibit fees
for depositions are not compensable. With regard to the court reporter’s attendance fees,
“[t]he prevailing party is entitled to reimbursement for all costs incident to the deposition,
including the cost of the court reporter’s attendance.” JTH Tax, Inc. v. Aime, 2017 WL
3710835, at *2 (E.D. Va. May 1, 2017) (internal quotation omitted). Indeed, courts
within the Fourth Circuit have awarded costs for court reporters’ attendance fees at
depositions. See Verizon S., Inc., 272 F.R.D. 436, 444 (E.D. Va. 2011) (concluding that
the court reporter’s attendance fee was a reasonable fee that was recoverable by the
prevailing party); JTH Tax, Inc. v. Aime, 2017 WL 3710835, at *2 (E.D. Va. May 1,
2017) (awarding court reporter’s attendance fee); Francisco v. Par. v. Siemens Med. Sols.
USA, Inc., 2011 WL 1098966, at *3 (E.D.N.C. Mar. 15, 2011) (awarding prevailing
party the court reporter’s appearance fees). As such, defendants can recover the court
reporter’s attendance fees, which are $262.50.
However, defendants cannot recover the scanned exhibit fees from the
depositions. A prevailing party may not recover the “costs for the inclusion of
[deposition] exhibits, ‘as these are primarily for the convenience of counsel, who often
has a copy of the exhibit at hand already.’” Delapp v. Shearer’s Foods, Inc., 2016 WL
1718395, at *3 (W.D. Va. Apr. 29, 2016) (quoting Scallet v. Rosenblum, 176 F.R.D. 522,
529 (W.D. Va. 1997)); see also Selective Way Ins. Co. v. Apple, 2017 WL 111439, at *2
(W.D. Va. Jan. 11, 2017) (denying recovery of cost incurred from including exhibits in
deposition transcripts). Therefore, the court disallows recovery of the $15.30 scanned

4

exhibit fee from Bryants’s first deposition and the $67.20 scanned exhibit fee from
defendants’ exhibits deposition.
In sum, the court finds that Bryant’s arguments do not overcome the presumption
of awarding costs to the prevailing party. Therefore, the court OVERRULES Bryant’s
objections with the exception of costs for scanned exhibits and GRANTS defendants
$1,858.10 in costs.
AND IT IS SO ORDERED.

March 3, 2020
Charleston, South Carolina

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE

5