Moore et al v. Weinstein Company, LLC et al

Filing 402

ORDER: Pursuant to the foregoing, Defendants' costs are properly taxed to Plaintiffs at $52,728.67. The Magistrate Judge has issued this in the form of an Order. In the event Judge Trauger determines this should be more properly be deemed a Report and Recommendation, she may of course address it under that standard. Signed by Magistrate Judge Joe Brown on 12/18/12. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
SAMUEL DAVID MOORE, JOYCE
ELLEN MOORE, and THE SJM TRUST,
Plaintiffs,
v.
THE WEINSTEIN COMPANY LLC
d/b/a DIMENSION FILMS, MGM
STUDIOS, INC.; GENIUS PRODUCTS,
LLC; CONCORD MUSIC GROUP, INC.
Defendants.

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Case No. 3:09-cv-0166
Judge Trauger/Brown

ORDER
After Defendants’ Motion for Summary Judgment was granted on May 23, 2012,
Defendants submitted a Bill of Costs to the Clerk on June 22, 2012. (Docket Entries 375-76,
382). The Clerk taxed these costs to the Plaintiffs on July 2, 2012. (Docket Entry 383). On the
same date, Plaintiffs filed their Objections. (Docket Entry 384).1 After receiving leave to file
their specific Objections, Plaintiffs filed them on July 18, 2012. (Docket Entry 387). Defendants
filed a Response. (Docket Entry 391). Plaintiffs filed a Reply. (Docket Entry 393). For the
reasons set forth below, Plaintiffs’ Objections are ACCEPTED in part and DENIED in part.
Defendants’ costs are hereby taxed at $52,728.67.
Defendants submitted costs that can be sorted into four primary categories: (1) Service
Fees, (2) Deposition Costs, (3) Copying Costs, and (4) E-Discovery Costs. All of these are
allowed pursuant to Fed. R. Civ. P. 54(d)(1) and 28 U.S.C. § 1920. The Court has broad

1

While these Objections were arguably untimely under Local Rule 54.01(a), Judge
Trauger ordered Plaintiffs to file their specific objections to the Bill of Costs no later
than July 18, 2012. (Docket Entry 386).

discretion in determining whether to tax a specific cost. See Riddle v. First Tenn. Bank, Nat.
Ass’n, 2011 WL 6740334 (Dec. 20, 2011). Some of Plaintiffs’ objections in each of these
categories are warranted, and the Magistrate Judge has made downward adjustments in each
category, as described below.
Plaintiffs argue that no costs should be taxed because the costs are unreasonable, the
“closeness” or “uniqueness” of the case, and the Plaintiffs indigent status. The Magistrate Judge
is not persuaded that a case dismissed on a motion for summary judgment is so unique or close
that billing costs is unfair or unreasonable. Moreover, any unreasonable costs can be (and, in this
Order, are) reduced. Finally, Plaintiffs have resisted attempts to ascertain their financial status at
every turn. See, e.g., Docket Entries 323, 374. The Magistrate Judge recommended, and Judge
Trauger adopted with modification, an adverse inference that: “The plaintiffs have never
received income for or related to any purported trademarks, rights of publicity or other rights
asserted in this lawsuit.” (Docket Entry 374). Plaintiffs may not now use their financial status to
avoid paying costs.
1.

Service Fees
Under 28 U.S.C. § 1920, the prevailing party may collect “fees of the clerk and marshal,”

which have been interpreted to include the fees of private process servers, so long as those fees
do not exceed the marshal’s rate for service of process. See Arrambide v. Wal-Mart Stores, Inc.,
33 Fed. App’x 199, 202-03 (6th Cir. 2002). The current fee for service of process by the United
States Marshal Service is $55 per hour, plus travel costs and other out-of-pocket expenses. 28
C.F.R. § 0.114(a)(3).
Here, Defendants seek service fees ranging from $40 to $170. (Docket Entry 382, p. 3).
Five (5) service fees range from $70 to $85. The Magistrate Judge believes these should all be

reduced to the U.S. Marshal Service’s rate of $55. Defendants have shown no justification for
these additional costs.
The Magistrate Judge will overrule Plaintiffs’ objections to the $170 charge for attempted
service on Roger Friedman, however. Dominic Dellaporte’s Declaration, submitted by
Defendants, indicates that Mr. Friedman repeatedly attempted to evade service. (Docket Entry
390). Therefore, Defendants are entitled to the full $170 service fee in this instance. The total
cost awarded for service of subpoenas is $545.
2.

Deposition Costs
Plaintiffs object primarily to the lack of itemization in Defendants’ Bill of Costs, noting

that deposition charges are based in part on the speed by which a transcript is requested.
Plaintiffs also object to Defendants’ submitted costs for video and paper transcripts for the
Plaintiffs’ depositions. As to the first objection, the Magistrate Judge ordered Defendants to
submit additional invoices with itemized costs. On December 17, 2012, Defendants submitted
the Declaration of Heather J. Hubbard, which provides this information in part.2 (Docket Entry
401).
From Ms. Hubbard’s Declaration and the attached documentation, it is clear that
Defendants requested expedited transcripts for two depositions, Joyce Moore and Collin
Standback. Ms. Moore’s deposition transcript, which took place on September 14 and 15, 2011,
was expedited so that Defendants could file their Motion to Compel (Docket Entries 259-60),
which was granted in part. (Docket Entry 323). Mr. Standback’s deposition transcript was
expedited because Plaintiffs had failed to have a transcript prepared or to pay the reporter’s fees

2

The undersigned recognizes Defendants were given only a short time to respond to this
information request.

for approximately three months, and Defendants’ dispositive motion deadline was within
approximately thirty days. Having reviewed Defendants’ submissions on this point, the
Magistrate Judge believes Defendants have shown these deposition transcript costs were
necessary, and they should be awarded.
With regard to the videotaped depositions, the Magistrate Judge agrees with Judge
Sharp’s opinion in Riddle, 2011 WL 6740334 at *2. The 2008 amendments to 28 U.S.C. §
1920(2) use the disjunctive “or” when referring to “[f]ees for printed or electronically recorded.”
Id. Therefore, Defendants’ videotape costs are not necessary and should not be taxed to
Plaintiffs. The charges for the videotaped depositions of Plaintiffs, at $1,126.64 and $2,204.12,
are therefore excluded from Defendants’ Bill of Costs.
The Magistrate Judge also believes the depositions related to personal jurisdiction with
regard to the Weinsteins should not be taxed to Plaintiffs. These depositions were ordered by the
Magistrate Judge after the Weinsteins refused to respond to reasonable discovery requests and to
submit informative affidavits on this issue. (Docket Entries 64, 72). Therefore, the Magistrate
Judge finds these costs unnecessary and will not tax them.
A related issue is the $40 witness fee for Kirt Webster. The Magistrate Judge believes
this is a valid cost and overrules Plaintiffs’ objections on this point. The total costs taxed in the
depositions category is $12,877.44.
3.

Copying Costs
Plaintiffs object to both the per page charge and the number of copies claimed by

Defendants. Defendants’ copy charges range from $0.15 per page to $0.20 per page, with
scanning charged at $0.08 per page, with a total dollar value of $3,158.08. As a point of
reference, the undersigned notes that the United States Marshal Service may recoup copying

costs at $0.10 per page under 28 C.F.R. § 0.114(a)(4). The Magistrate Judge believes
Defendants’ copy costs are reasonable, but the per page fee should be limited to $0.15, based on
the lower rate negotiated early in this litigation. While Plaintiffs’ objections to the scanning
charges are well-taken, scanning does require labor and is a necessary cost to Defendants.
Moreover, in some instances, scanning may have saved money through emailed discovery
requests, rather than mailed copies.
Plaintiffs’ objection to the number of copies claimed by Defendants is not persuasive.
The copy entries appear to be necessary to litigation. The largest and most expensive copy jobs
are related to depositions and document production. In a case with protracted discovery (at the
fault of both sides), Defendants’ number of necessary copies is reasonable. Defendants’ award of
copying costs is hereby reduced by $48.75, for a total of $3,109.33.
4. E-Discovery Costs
Defendants’ largest cost submission is for electronic discovery, at over $40,000, nearly
two-thirds of their total bill of costs. Approximately half was performed by an outside vendor,
Document Solutions, at a cost of $22,706.90. The other charges were performed in-house at
Waller. The parties agreed to e-discovery procedures in the Case Management Order. (Docket
Entry 142). These provided a specific format (singe-page TIF), including Summation, DII, and
LFP load files.
The Magistrate Judge has reviewed these charges and believes some are unreasonable
and should be reduced or eliminated. The Document Solutions charges are reasonable and
necessary. Pursuant to the Case Management Order, costs for processing documents into specific
formats were required to be borne by each party. Moreover, further processing that document for
production by, for example, searching for specific custodians, is also a necessary cost of this

litigation.
With respect to the in-house “Technology Services” charges, however, the Magistrate
Judge is persuaded that the per hour charge of $150 is unreasonable. Document Solutions billed
“tech time” at $175 per hour, which would presumably be significantly higher than the rates
billed to Waller clients by Waller’s in-house technical staff. The Magistrate Judge believes that a
rate comparable to an experienced paralegal would be more appropriate. The technology services
technologists have specialized expertise and training similar to a paralegal. Therefore, the
Magistrate Judge will set a more reasonable billing rate of $100/hour for Technology Services
billing.
In addition to an unreasonable rate, some time entries are unnecessary or are for costs not
properly taxed to the Plaintiffs. These entries include the May 25, 2011 entry for “Work on
discovery budget” (not properly taxed to Plaintiffs), the several entries for “Preparation of
deposition transcripts for review” or for “Preparation of documents for hearing” (paralegal
work), and the September 27, 2011 entry for “Prepare for and attend telephonic deposition of IT
vendor” (unnecessary). In total, these disallowed entries constitute 9.6 hours of billable time.
Therefore, the total billable hours allowed are 134.9. At the new rate of $100/hour, total billing
for Technology Services hours is $13,490.
With the reductions in this category, the total taxable costs for e-discovery are
$36,196.90.
CONCLUSION
Pursuant to the foregoing, Defendants’ costs are properly taxed to Plaintiffs at
$52,728.67. The Magistrate Judge has issued this in the form of an Order. In the event Judge
Trauger determines this should be more properly be deemed a Report and Recommendation, she

may of course address it under that standard.
In that event, under Rule 72(b) of the Federal Rules of Civil Procedure, any party would
have fourteen (14) days from receipt of this Report and Recommendation within which to file
with the District Court any written objections to the proposed findings and recommendations
made herein. Any party opposing shall have fourteen (14) days from receipt of any objections
filed regarding this Report within which to file a response to said objections. Failure to file
specific objections within fourteen (14) days of receipt of this Report and Recommendation may
constitute a waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140,
reh’g denied, 474 U.S. 1111 (1986).
It is so ORDERED.

Entered this 18th day of December, 2012.

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JOE B. BROWN
United States Magistrate Judge