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, )

Download PDF
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. ) ) ) ) ) ) ) ) ) ) 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. 1 2 920(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. 3 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. 4 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 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?