Lasher v. Day & Zimmerman International Inc

Filing 171

ORDER reducing 161 Bill of Costs filed by Day & Zimmerman International Inc. to $2,908.10. Signed by Magistrate Judge William M Catoe on 9/26/08. (ladd, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE DISTRICT OF SOUTH CAROLINA G R E E N V IL L E DIVISION

P a u lin e E. Lasher, Plaintiff, vs. D a y & Zimmerman International, Inc., Defendant.

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C iv il Action No. 6:06-1681-W M C ORDER

The plaintiff filed a complaint on September 8, 2005, alleging that, during the ye a r of her employment with Day & Zimmerman International, Inc. ("DZII"), her co-worker T o m Sims and her purported supervisor, Guy Starr, subjected her to sexual harassment, sex d is c rim in a tio n , and intentional infliction of emotional distress. The plaintiff also alleged that D Z II negligently hired and retained Sims and that DZII retaliated against her by selecting her fo r layoff because she purportedly complained of sexual harassment. On September 24, 2 0 0 7 , the Honorable G. Ross Anderson, Jr., United States District Judge, entered an order g ra n tin g DZII's motion for summary judgment as to the plaintiff's negligent retention and in te n tio n a l infliction of emotional distress claims, as well as her claim of sexual harassment b y Sims. The court denied the motion as to the plaintiff's remaining claims (the retaliation and h o s tile work environment claims involving Starr). T h e case was referred to this court for disposition on March 26, 2008, upon c o n se n t of the parties pursuant to Title 28, United States Code, Section 636(c), and Local R u le 73.01(B), DSC, by order of Judge Anderson. A bench trial was held on July 21-22, 2 0 0 8 . On August 13, 2008, this court entered an order finding for the defendant on both of th e plaintiff's remaining claims. O n August 27, 2008, the defendant filed its Bill of Costs (doc. 161). On S e p te m b e r 12, 2008, the plaintiff filed her opposition to the Bill of Costs (doc. 162), and on

S e p te m b e r 22, 2008, the defendant filed its response in support of the Bill of Costs (doc. 1 7 0 ). F e d e ra l Rule of Civil Procedure 54(d)(1) states: "Unless a federal statute, these ru le s , or a court order provides otherwise, costs - other than attorney's fees - should be a llo w e d to the prevailing party." The Fourth Circuit Court of Appeals has clarified that the rule g iv e s rise to a presumption in favor of an award of costs to the prevailing party. Teague v. T a g g a r t, 35 F.3d 978, 996 (4 th Cir. 1994). In Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U .S . 437, 441-42 (1987), the Supreme Court held that federal courts are limited to assessing o n ly those costs enumerated under 28 U.S.C. § 1920.1 However, it is generally accepted that c o u rts are free to interpret the meaning of the costs stated within Section 1920. See Alflex C o rp . v. Underwriters Labs., Inc., 914 F.2d 175, 176-77 (9 th Cir.1990) (holding that courts are f re e to interpret what constitutes taxable costs after Crawford ). The defendant seeks costs of $4,432.71, including fees for court reporters, c o p ie s , postage, travel, and meals. The plaintiff states that she objects to any and all costs. H o w e v e r, as the defendant is the prevailing party, this court will presume that the defendant is entitled to an award of costs. T h e plaintiff also objects to certain specific costs. The plaintiff argues that the n o ta ry and reporting fees of $100.00 and $137.50 for her depositions are improper as "[d ]is c o v e ry depositions are not taxable" (pl. opp. to costs 1). According to 28 U.S.C.

The statute provides in pertinent part: A judge or clerk of any court of the United States may tax as costs the f o llo w in g : (1 ) Fees of the clerk and marshal; (2 ) Fees of the court reporter for all or any part of the stenographic tra n s c rip t necessarily obtained for use in the case; (3 ) Fees and disbursements for printing and witnesses; (4 ) Fees for exemplification and copies of papers necessarily obtained f o r use in the case; (5 ) Docket fees under section 1923 of this title; (6 ) Compensation of court appointed experts, compensation of in te rp re t e rs , and salaries, fees, expenses, and costs of special in te rp re ta tio n services under section 1828 of this title. . . . 2 8 U.S.C. § 1920.

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§ 920(2), taxing of costs are permitted with regard to the "fees of the court reporter for all or a n y part of the stenographic transcript necessarily obtained for use in the case." The plaintiff h a s cited no authority for her assertion that the defendant cannot recover costs associated w ith her deposition. Local Civil Rule 54.03(H)(3) DSC states that taxable costs include those fo r "[d]epositions used during trial for impeachment purposes where the party using the d e p o s itio n for impeachment prevails." The rule notes specifically that such costs include "s te n o g ra p h e r's fee, costs of original transcription, and postage." In the instant case, the d e fe n d a n t used the plaintiff's first and second depositions for impeachment purposes at trial a n d ultimately prevailed on all of the plaintiffs claims. Further, even if the defendant had not u s e d her depositions at trial, it would still be entitled to these costs because taxable costs in c lu d e those associated with "[d]epositions not admitted at trial but which were 'reasonably n e c e s s a r y' at the time of their taking." Local Civil Rule 54.03(H)(4) DSC. The plaintiff also o b je c ts to the costs for copies of her deposition transcripts. However, according to the d e f e n d a n t, such copies were provided by the court reporter free of charge (def. reply 3-4). B a s e d upon the foregoing, the court reporter fees claimed by the defendant are taxable a g a in s t the plaintiff. N e x t, the plaintiff objects to the defendant's fees for photocopies, arguing that th e defendant did not identify each document, list the number of pages, the number of copies, th e ir purpose, and the per page rate. In its response, the defendant notes that such fees are ta x a b le under 28 U.S.C. § 1920(4) and Local Civil Rule 54.03(F). The defendant notes that p h o to c o p ie s made internally were charged at the rate of ten cents per copy. The defendant a ls o identified the documents copied and listed the number of pages copied of each d o cu m e n t. "It is well established that costs incurred in copying depositions, exhibits and other d o c u m e n ts for use in the case are taxable against the non-prevailing party." Wyne v. Medo In d u s ., 329 F.Supp.2d 584, 590 (D. Md. 2004) (awarding prevailing party $504.90 for p h o to c o p ie s furnished to the court and opposing counsel). Based upon the foregoing, the d e f e n d a n t's fees of $495.31 for photocopying are taxable against the plaintiff.

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The plaintiff objects to the costs claimed by the defendant for obtaining a copy o f the jury questionnaires from AIM Mail Center in January and April 2008. These costs total $ 2 8 6 .6 4 and include Federal Express and United Postal Service mailing charges. The d e fe n d a n t notes that the reason there are two sets of charges is because the trial date was c h a n g e d in January 2008 upon request of the plaintiff. The defendant then had to repeat the p ro c e s s of obtaining jury questionnaires in April 2008. This court finds that the copying costs fo r the jury questionnaires is a taxable cost. W ith regard to the mailing expenses, "courts h a ve generally not allowed the inclusion of mailing expenses as a taxable cost, absent s p e c ia l circumstances." AM Properties v. Town of Chapel Hill, 202 F.Supp.2d 451, 456 (M.D. N .C . 2002) (citing Matter of Penn Central Transp. Co., 630 F.2d 183, 192 (3d Cir.1980)). The d e fe n d a n t states that the FedEx and UPS charges were necessary because AIM Mail Center d id not prepare the copies until shortly before jury selection was to occur. This court finds the e x p r e s s shipping charges in this case are not such "special circumstances" as to justify ta x a tio n against the plaintiff. Accordingly, the defendant's Bill of Costs will be reduced by $ 4 0 .5 0 . T h e plaintiff objects to the costs of $165.32 for meals and $1,239.52 for travel e x p e n s e s incurred by the defense counsel in attending depositions (including a deposition in Houston, Texas conducted by the plaintiff), conferences, and trial. The defendant cites H e ro ld v. Hajoca Corp., 864 F.2d 317, 323 (4 th Cir. 1988) (holding that trial court did not a b u s e discretion in including as costs the travel expenses of the attorneys) in support of its c la im of attorney travel expenses. However, the court in Herold included travel expenses as p a rt of the attorney fees authorized by statute in the Age Discrimination in Employment Act. Id . By order filed September 16, 2008, this court has previously denied the defendant's m o tio n for attorney fees. This court finds that the travel expenses of $1,239.52 incurred by d e fe n s e counsel is not taxable as a cost against the plaintiff. Further, the $165.32 for meals fo r the defense counsel and their clients is not a taxable cost. Accordingly, the defendant's B ill of Costs will be reduced by $1,404.84.

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T h e plaintiff objects to the cost of $71.87 for Federal Express fees. The d e fe n d a n t notes that Local Civil Rule 54.03(H) specifically states that taxable costs include p o sta g e incidental to the taking of depositions. The defendant contends that the two charges o f $10.57 on February 22, 2007, for items sent to Jim Rivet, and the April 13, 2007, charge o f $11.46 for items sent to the court reporter fall in this category. The defendant provides no in fo rm a tio n as to the charges for $20.14 and $19.13 on November 6, 2006. Accordingly, the d e fe n d a n t's Bill of Costs will be reduced by $39.27. L a s tly, the plaintiff objects to a fee of $40.00 for dictation of notes from Dr. Keith B a rto n , the plaintiff's psychologist. According to the defendant, Dr. Barton provided it with th e plaintiff's psychological records in accordance with the plaintiff's signed authorization. H o w e v e r, the notes were illegible. Therefore, defense counsel had to contact Dr. Barton for c l a r if ic a tio n of the meaning of some of the documents. This court finds that this is not a p ro p e r cost as it appears to be incidental to defense counsel's services, and it does not fall w ith in the definition of "costs" in Section 1920. Accordingly, the Bill of Costs will be reduced b y $40.00. W h e r e f o r e , based upon the foregoing, the defendant's Bill of Costs, which in itia lly requested a sum of $4,432.71, will be reduced by a total of $1,524.61. Accordingly, th e costs recoverable by the defendant and taxed against the plaintiff pursuant to Federal R u le of Civil Procedure 54(d) and 28 U.S.C. § 1920 will be Two Thousand Nine Hundred E ig h t and 10/100 ($2,908.10) Dollars. IT IS SO ORDERED.

s /W illia m M. Catoe U n ite d States Magistrate Judge S e p te m b e r 26, 2008 G r e e n v ille , South Carolina

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