Cox v. Duke Energy Inc et al

Filing 182

ORDER AND OPINION re 173 Bill of Costs filed by JW Byrd, Gary Streett, Joyce C Everett, 172 Bill of Costs, filed by Duke Energy Inc. The Court finds the costs sought recoverable with the exception of $1,062.1 0 in costs sought by Duke Energy for payment to AVN solutions, LLC for the deposition of Anderson. The Court, therefore, awards costs in the amount of $6,551.28 to Duke Energy and $3,272.20 to the Sheriff Defendants. Signed by Honorable Bruce Howe Hendricks on 1/31/2017. (prou, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
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Civil Action No.: 4:13-cv-1456-BHH
)
)
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Plaintiff, ) ORDER AND OPINION
)
)
vs.
)
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Duke Energy, Inc., Darlington County )
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Sheriff’s Office, Darlington County
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Sherriff J.W. Byrd, Gary Streett,
Joyce C. Everett, and William “Randy” )
)
Gideon,
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Defendants. )
______________________________ )
William B. Cox, Personal
Representative for the Estate of
Robin C. Fleming,

This matter is before the Court upon Bill of Costs motions filed by Defendants
Duke Energy Inc. (“Duke Energy”) (ECF No. 172), and J.W. Byrd, Joyce C. Everett, and
Gary Streett (“Sheriff Defendants”). (ECF No. 173.) The Court entered summary
judgment in favor of Defendants on March 31, 2016. (ECF No. 170.) Duke Energy and
the Sheriff Defendants timely submitted their Bill of Costs in the amount of $7,613.38 and
$3,272.20, respectively. (ECF Nos. 172; 173.) Plaintiff filed objections to the Bill of Costs
on April 22, 2016,1 (ECF No. 174), to which Duke Energy responded, (ECF No. 176). For
the reasons set forth below, the Court grants Defendants’ request for costs with
exception.

1
While Duke Energy argues that Plaintiff’s objections are untimely because the deadline for objections to
its Bill of Costs was one day earlier, April 21, 2016, there is no evident prejudice from this minimal delay.
(ECF No. 176 at 1.) The Court will not reject Plaintiff’s objections on this basis.

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LEGAL STANDARD
According to the Federal Rules of Civil Procedure, “costs—other than attorney’s
fees—should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). As such, there
is a presumption in favor of awarding costs to a prevailing party. See Teague v. Bakker,
35 F.3d 978, 996 (4th Cir. 1994); see also Cherry v. Champion Int’l Corp., 186 F.3d 442,
446 (4th Cir. 1999). Accordingly, it is incumbent upon the unsuccessful party to show
circumstances sufficient to overcome the presumption favoring an award of costs to the
prevailing party. Id. (citing Teague, 35 F.3d at 996).
To overcome the presumption favoring the prevailing party and to deny that party
costs, the court must articulate some “good reason” for doing so. Teague, 35 F.3d at
996; see also Oak Hall Cap & Gown Co. v. Old Dominion Freight Line, Inc., 899 F.2d
291, 296 (4th Cir. 1990). Among the factors that justify denying an award of costs are:
(1) misconduct by the prevailing party; (2) the unsuccessful party’s inability to pay the
costs; (3) the excessiveness of the costs in a particular case; (4) the limited value of the
prevailing party’s victory; or (5) the closeness and difficulty of the issues decided. Id.
(citing Cherry, 186 F.3d at 446). Ultimately, the court has discretion to award or deny
costs to the prevailing party. Cherry, 186 F.3d at 446.
DISCUSSION
In this case, there is no suggestion of misconduct by Defendants, the prevailing
party, and their victory is not of limited value. Thus, the first and fourth factors favor
assessing costs against Plaintiff. While the majority of costs are undisputed in amount,
Plaintiff asserts that Duke Energy is unfairly asking for costs for both the video deposition

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and the transcribed deposition of Plaintiff’s expert, David Anderson (“Anderson”). (ECF
No. 174 at 3.) Plaintiff’s argument places Exhibits G and K in dispute. (ECF No. 177.) On
the docket, Exhibit G is labeled “Invoice for the deposition of David Anderson” and
Exhibit K is labeled “Invoice for the video deposition of plaintiff’s expert, David
Anderson.” (ECF No. 172.) Duke Energy’s itemized bill of costs lists Exhibit K as
“Payment to AVN Solutions, LLC for deposition of Plaintiff’s expert David Anderson.”
(ECF No. 172-1.) However, the contents of Exhibit K indicate that it is actually an invoice
for the video deposition of Robin Fleming, and reveal a different amount invoiced than
that stated in the itemized bill of costs.2 (ECF Nos. 172-1; 172-12.)
Duke Energy contends that the deposition of Anderson was not videotaped and
cites Exhibit G in support. (ECF No. 176 at 1–2.) Duke Energy completely ignores Exhibit
K in its response, which the docket labels as invoicing a video deposition for Anderson.
Given that Exhibit K was apparently mislabeled and that Duke Energy has failed to
substantiate the costs listed therein, the Court will not include that invoice in the list of
costs sought by Duke Energy. The court finds that the remaining costs are not
excessive, and the third factor therefore weighs in favor of Defendants.
As to the fifth factor, Plaintiff contends that the issues in this case were close and
difficult and cites a portion of the Court’s March 31, 2016 Order in support. (ECF No. 174
at 2.) However, contrary to Plaintiff’s assertions, the Court did not expressly consider this
to be a close case. Rather, in the portion of the Order cited by Plaintiff, the Court
explained that “the Duke Defendants[’] . . . separate federal obligation to investigate the

2
Duke Energy’s itemized bill of costs lists Exhibit K as an invoice for $1,062.10, while the actual invoice in
Exhibit K is for the amount of $1,604.60. (ECF Nos. 172-1; 172-12.)

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circumstances surrounding a flight they deemed to be suspicious” negated the factors
that “would otherwise make this a close case.” (ECF No. 170 at 33.) In short, the Court
does not find the issues in this case were notably close or difficult. Thus, this factor also
weighs in favor of Defendants.
The remaining question is whether Plaintiff has the ability to pay costs. Plaintiff
contends the estate “has no income and few assets” and that awarding costs would
create a hardship. (ECF No. 174 at 2.) Plaintiff further asserts that Defendants are in
much better financial circumstances to bear the costs of this litigation. (Id.) Given that the
majority of the other factors favor Defendants, the Court declines to deny Defendants
costs on this basis. The Fourth Circuit has similarly rejected arguments that a plaintiff’s
good faith, modest means, or the defendant’s substantially greater wealth (either alone
or in combination) justify the denial of costs. Cherry, 186 F.3d at 447–48 (noting that,
while good faith is a prerequisite to denial of costs, it did not alone justify such denial and
plaintiff had failed to show her means were so modest she could not pay costs).
CONCLUSION
For the reasons explained above, the Court finds the costs sought recoverable
with the exception of $1,062.10 in costs sought by Duke Energy for payment to AVN
solutions, LLC for the deposition of Anderson. The Court, therefore, awards costs in the
amount of $6,551.28 to Duke Energy and $3,272.20 to the Sheriff Defendants.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
Greenville, South Carolina
January 31, 2017

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