Frye et al v. Baptist Memorial Hospital - Memphis
Filing
423
ORDER granting Motion for Bill of Costs; denying Motion for Taxation of Costs.. Signed by Judge Samuel H. Mays, Jr on 03/26/31.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JAMES ALLEN FRYE, on Behalf of
Himself and All Others
Similarly Situated,
Plaintiff,
v.
BAPTIST MEMORIAL HOSPITAL,
INC. d/b/a BAPTIST MEMORIAL
HOSPITAL—MEMPHIS, BAPTIST
MEMORIAL HOSPITAL—
COLLIERVILLE, and BAPTIST
MEMORIAL HOSPITAL FOR WOMEN,
Defendant.
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No. 07-2708
ORDER DENYING PLAINTIFF’S MOTION FOR TAXATION OF COSTS AND
AWARDING COSTS
Plaintiff
claiming
that
James
Allen
Defendant
Frye
(“Frye”)
Baptist
brought
Memorial
this
Hospital,
action
Inc.
(“Baptist”) had violated the Fair Labor Standards Act (“FLSA”),
29 U.S.C. §§ 201 et seq., by failing to compensate him and
similarly situated hourly employees for time worked during meal
breaks.
(See Compl. ¶¶ 8-9, 24-25, 33, ECF No. 1) (“Compl.”)
On April 27, 2011, the Court rejected Frye’s claims and granted
Baptist’s motion for summary judgment.
1
(See ECF No. 409) (the
“April 27 Order.”)
against Frye.
On April 27, 2011, judgment was entered
(See Judgment, ECF No. 410.)
On May 20, 2011, Baptist moved for a Bill of Costs under
Rule 54(d) of the Federal Rules of Civil Procedure and requested
$55,401.63 incurred for: (1) the service of subpoenas; (2) court
reporter fees; and (3) printing and copying costs.
411.)
(See ECF No.
The Clerk of Court granted Baptist’s Bill of Costs on
December 22, 2011.
(See ECF No. 419) (the “Bill of Costs.”)
Frye timely appealed.
Before the Court is Frye’s December 29, 2011 Motion for
Taxation of Costs.
(See ECF No. 420.)
He seeks reversal of the
Clerk of Court’s entry of the December 22 Bill of Costs.
Frye
argues that: (1) the FLSA is a remedial statute that does not
provide for taxing costs to plaintiffs; (2) Baptist is not a
“prevailing party” entitled to costs; (3) the December 22 Bill
of Costs includes amounts that were not necessary to resolve
Frye’s substantive rights; (4) Baptist’s Bill of Costs includes
items
not
covered
under
federal
impoverished by the Bill of Costs.
law;
and
(5)
Frye
will
be
For the following reasons,
Frye’s Motion is DENIED.
I.
Background
The Court discussed the factual background of this case in
its April 27 Order.
2
On December 22, the Clerk of Court awarded $55,401.63 to
Baptist.
The Clerk of Court concluded that Baptist was entitled
to costs because, “when it comes to the issue of awarding costs
to a successful defendant, FLSA must be read in pari materia
with Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920 . . . . It is
quite
possible
that
FLSA
is
silent
on
[awarding
costs
to
defendants] precisely because Rule 54(d) and § 1920 are already
in place and speak to this issue.”
(Bill of Costs 3.)
The
Clerk of Court rejected Frye’s argument that taxing costs would
chill future FLSA claims, concluding that “Frye chose to put
himself at risk by his role as the named party.”
(Id. 4.)
The
Clerk also concluded that Baptist was the prevailing party in
the action and that the costs associated with decertifying the
collective action were necessary to resolve Frye’s substantive
rights.
(Id.)
The Clerk of Court rejected Frye’s argument that
taxing costs would impoverish him, concluding that his evidence
was insufficient.
II.
(Id. 5-6.)
Standard of Review
Under Federal Rule of Civil Procedure 54(d)(1), “[u]nless 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 in favor of awarding costs, but allows
denial of costs” in the court’s discretion.
3
Knology, Inc. v.
Insight
Commc’ns.
Co.,
460
F.3d
722,
726
(6th
Cir.
2006)
(quoting Singleton v. Smith, 241 F.3d 534, 539 (6th Cir. 2001));
accord McDonald v. Petree, 409 F.3d 724, 732 (6th Cir. 2005)
(citing White & White, Inc. v. Am. Hosp. Supply Corp., 786 F.2d
728, 730 (6th Cir. 1986)); see also Cooley v. Lincoln Electric
Co., 776 F. Supp. 2d 511, 574 (N.D. Ohio 2011) (“Rule 54(d)(1)
creates
a
presumption
in
favor
of
awarding
prevailing party . . . .”) (citations omitted).
costs
to
the
“‘The function
of the court in the process of taxing costs is merely to review
the determination of the clerk.’”
BDT Prods., Inc. v. Lexmark
Int’l., Inc., 405 F.3d 415, 417 (6th Cir. 2005) (quoting 10
Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard
L. Marcus, Federal Practice and Procedure § 2679 (3d ed. 1998)).
“The
costs
that
courts
may
tax
under
Rule
54(d)(1)
confined to the costs itemized in 28 U.S.C. § 1920.”
are
In re
Cardizem CD Antitrust Litig., 481 F.3d 355, 359 (6th Cir. 2007)
(citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.
437, 441 (1987)); see also Arlington Cent. Sch. Dist. Bd. of
Educ. v. Murphy, 548 U.S. 291, 297-98 (2006).
Section 1920 provides that a judge or any clerk of the
United States may tax as costs the following: “(1) Fees of the
clerk
and
marshal;
(2)
Fees
for
printed
or
electronically
recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses; (4) Fees
4
for
exemplification
and
the
costs
of
making
copies
of
any
materials where the copies are necessarily obtained for use in
the case; (5) docket fees . . . .”
28 U.S.C. § 1920.
Courts
have discretion under Rule 54(d)(1) to “decline requests for
costs,
not
discretion
enumerate.”
359.
to
award
costs
that
§
1920
fails
to
In re Cardizem CD Antitrust Litig., 481 F.3d at
The discretion granted by Rule 54 “is solely a power to
decline
to
tax,
as
costs,
the
items
enumerated
in
§
1920.”
Crawford Fitting, 482 U.S. at 441-42.
When
faced
with
motions
under
Rule
54(d)(1),
district
courts review decisions by the clerk of court under a de novo
standard.
See BDT Prods., 405 F.3d at 419 (“[A]ny decision by
the clerk would have been subject to de novo review by the
district court.”).
However, “[b]efore the district court, ‘it
is incumbent upon the unsuccessful party to show circumstances
sufficient to overcome the presumption’ favoring an award of
costs to the prevailing party.”
White & White, Inc., 786 F.2d
at 732 (quoting Lichter Found., Inc. v. Welch, 269 F.2d 142, 146
(6th Cir. 1959)); see also Cooley, 776 F. Supp. 2d 511 at 574
(“Defendants, who have objected to the payment of costs, bear
the burden of proving circumstances sufficient to overcome the
presumption in favor of an award of costs.”) (citation omitted).
III. Analysis
A.
The FLSA Allows Defendants to Recover Costs
5
Under
maintained
29
U.S.C.
against
§
an
216(b),
employer
“[a]n
.
.
action
.
by
.
any
.
.
one
may
or
be
more
employees for and in behalf of himself or themselves and other
employees similarly situated.”
procedural
mechanism
under the FLSA.
for
This provision is the exclusive
certification
of
collective
actions
See Brown v. Money Tree Mortgage, Inc., 222
F.R.D. 676, 679 (D. Kan. 2004).
Although the FLSA does not
expressly permit defendants to recover costs, § 216(b) provides
that, “in addition to any judgment awarded to the plaintiffs or
plaintiffs, [to] allow a reasonable attorney’s fee to be paid by
the defendant, and costs of the action.”
The Sixth Circuit has
not addressed whether § 216(b), or any other FLSA provision,
permits defendants to recover costs.
Frye argues that neither the text nor the spirit of the
FLSA contemplates awarding costs to defendants.
He cites Fegley
v. Higgins, 19 F.3d 1126, 1135 (6th Cir. 1994), where the Sixth
Circuit refused to award a successful defendant attorney’s fees
under the FLSA.
for
attorney’s
He contends that if the FLSA does not provide
fees
it
must
also
exclude
costs.
Frye
also
argues that awarding costs to defendants would undermine the
“broad
remedial
and
designed to serve.
humanitarian”
purposes
that
the
FLSA
is
See Fegley, 19 F.3d at 1132.
“An award of costs to a prevailing defendant in an FLSA
case
is
clearly
possible
and
6
is
not
merely
theoretical.”
Creten-Miller v. Westlake Hardware, Inc., No. 08-2351-KHV, 2009
U.S.
Dist.
LEXIS
60393,
at
*15
(D.
Kan.
July
15,
2009)
(collecting cases); see also Gomez v. Reinke, No. CV91-299-SLMB,
2008
U.S.
Dist.
LEXIS
60547,
at
*6
(D.
Idaho
2008)
(awarding costs to defendants for prevailing on merits of an
FLSA collective action claim).
When confronted with defendants’
requests for costs, district courts have analyzed those requests
using the framework of Rule 54(d) and § 1920, rather than the
FLSA itself.
See, e.g., Johnson v. Big Lots Stores, Inc., 639
F.
696,
Supp.
2d
defendant’s
reference
request
to
the
707-08
(E.D.
for
costs
FLSA).
When
La.
2009)
under
(evaluating
Rule
addressing
54(d)(1)
whether
the
without
defendants
qualify for costs under Rule 54(d)(1), courts have focused on
whether they are “prevailing parties.”
is
a
“strong
presumption”
under
See id. at 708.
Rule
54(d)
that
There
prevailing
parties will be awarded costs.
Id. (citing Cheatham v. Allstate
Ins.
(5th
Co.,
465
F.3d
578,
586
Cir.
2006)).
Baptist
is
entitled to recover costs, and that right flows from Rule 54(d)
rather than the FLSA.
Frye’s reliance on Fegley is misplaced.
In Fegley, the
Sixth Circuit concluded that defendants were not entitled to
attorney’s
fees
because
§
216(b)
“does
not
provide
for
plaintiffs to pay attorney fees to defendants; under the plain
language of the statute, defendants’ argument is meritless.”
7
19
F.3d
at
1135.
Although
the
Sixth
Circuit
did
not
directly
address the issue of costs, it noted that § 216(b) distinguished
between an “attorney’s fee” and “the costs of the action.”
Id.
Rule 54 also distinguishes between attorney’s fees and costs.
Compare Fed. R. Civ. P. 54(d)(1) (“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.”) with Fed. R. Civ. P. 54(d)(2)(b) (“Unless a statute or
a court order provides otherwise, the motion must . . . specify
the judgment and the statute, rule or other grounds entitling
the movant to the award.”).
The Clerk of Court relied on Rule 54 in concluding that the
FLSA “must be read in pari materia with Fed. R. Civ. P. 54(d)
and
28
U.S.C.
§
1920;
and
whereas
[the]
FLSA
might
not
specifically provide for the recovery of a defendant’s costs,
Rle 54(d) and § 1920 do.
It is quite possible that [the] FLSA
is silent on this issue precisely because Rule 54(d) and § 1920
are already in place and speak to this issue.”
(Bill of Costs
3.)
A matter of presumption distinguishes Rule 54’s provisions
for
attorney’s
fees
and
costs.
The
plain
language
of
Rule
54(d)(1) entitles prevailing parties to costs unless prohibited
by a statute, rule, or court order.
See Watkins v. Bailey, No.
09-2149, 2011 U.S. Dist. LEXIS 73306, at *3 (W.D. Tenn. July 6,
8
2011)
(“Rule
54(d)(1)
‘creates
a
presumption
in
favor
of
awarding costs.’”) (quoting Knology, Inc., 460 F.3d at 726).
Rule
54’s
provision
for
attorney’s
fees
parties
to
See Fed. R. Civ. P.
identify the authority permitting fees.
54(d)(2)(B).
requires
Given that distinction, it is no surprise that
courts addressing requests for attorney’s fees and costs have
concluded that defendants are entitled to costs, but not fees.
See Fegley, 19 F.3d 1135 (concluding that defendants may not
recover attorney’s fees in defending FLSA actions); see also
Reyes
v.
Texas
EZPawn,
No.
V-03-128,
2007
U.S.
Dist.
LEXIS
93056, at *5-6 (S.D. Tex. 2007) (awarding costs to defendants);
Big Lots, 639 F. Supp. 2d at 707-08 (analyzing whether to award
costs to defendants based on Rule 54 without reference to FLSA
provisions).
Frye’s argument that awarding costs to Baptist would have a
chilling effect on future FLSA claims is without merit.
The
FLSA is “designed to be ‘a broadly remedial and humanitarian
statute,’”
Fegley,
19
F.3d
1132
(quoting
Dunlop
v.
Carriage
Carpet Co., 548 F.2d 139, 143 (6th Cir. 1977)), but taxing costs
to Frye would not undermine those goals.
his FLSA claim as a collective action.
do so.
Frye chose to bring
He was not required to
He chose to put himself at risk as the named party, and
he assumed the attendant risks, including the risk of paying
costs.
That the FLSA is remedial should not permit Frye to
9
evade
the
responsibilities
of
advancing
a
failed
claim.
Congress has recognized that representative actions are neither
risk-free nor inexpensive; indeed, risk and cost are ubiquitous.
Frye may not use the FLSA as a sword to advance his claim while
shielding himself from risk.
To conclude otherwise would allow
plaintiffs to advance risk-free FLSA claims, which neither the
FLSA nor representative actions in general permit.
B.
Under
Baptist Is a Prevailing Party
Rule
54(d)(1),
courts
may
award
costs
other
than
attorney’s fees to the prevailing party, subject to the district
court’s discretion to direct otherwise.
See Hadix v. Johnson,
322 F.3d 895, 899 (6th Cir. 2003); see also Clarke v. Mindis
Metals, No. 95-5517, 1996 U.S. App. LEXIS 27925, at *31 (6th
Cir. Oct. 24, 1996).
This provision establishes the presumption
that prevailing parties are “usually entitled to costs.”
322 at 899.
Hadix,
Whether Baptist is entitled to costs turns, in
part, on whether it is a prevailing party.
See Andretti v.
Borla Performance Indus., 426 F.3d 824, 835 (6th Cir. 2005).
A party is said to prevail when it receives “at least some
relief on the merits of [its] claim.”
Buckhannon Bd. & Care
Home, Inc. v. W. Virginia Dep’t. of Health and Human Res., 532
U.S. 598, 603 (2001) (defining “prevailing party” in the context
of fee-shifting statutes); accord, Andretti, 426 F.3d at 835.
For a party to be “prevailing,” there must be a “judicially
10
sanctioned change in the legal relationship of the parties.”
Buckhannon Bd. & Care Home, Inc., 532 U.S. at 605.
Baptist seeks costs incurred in achieving decertification
and denying Frye’s claims on summary judgment.
Frye does not
dispute that Baptist is entitled to costs on summary judgment.
He could not.
It is axiomatic that a party granted summary
judgment is a “prevailing party” under Rule 54.
See Swann v.
Sec’y, 2012 U.S. App. LEXIS 1967, at *10 (11th Cir. Feb. 2,
2012); see also Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327,
1331 n.6 (11th Cir. 2001) (“[A] grant of summary judgment is a
decision on the merits.”).
must
decide
summary
whether
judgment
Given that foundation, the Court
Baptist’s
includes
“prevailing
costs
incurred
party”
in
status
on
decertification
proceedings.
The Sixth Circuit has not addressed whether a defendant
becomes a prevailing party on decertification.
disagree
about
whether
decertification
Other courts
proceedings
representative actions are collateral to the merits.
in
See Big
Lots, 639 F. Supp. 2d at 708 (“The denial or decertification of
a class is a “procedural ruling, collateral to the merits of the
litigation.”) (quoting J.R. Clearwater, Inc. v. Ashland Chemical
Co., 93 F.3d 176 (5th Cir. 1996)); Gidden v. Chromalloy American
Corp., 808 F.2d 621, 623 (7th Cir. 1986) (“[A] decision on class
certification is not collateral to a decision on the merits.”)
11
(characterizing Coopers & Lybrand v. Livesay, 437 U.S. 463, 469
(1978)).
the
The Supreme Court has not decided the issue, although
court
has
addressed
finality
for
purposes
of
appeal.
Compare Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326, 336
(1980) (“We view the denial of class certification as an example
of
a
procedural
litigation,
that
ruling,
is
collateral
appealable
to
after
the
the
merits
entry
of
of
a
final
judgment.”) with Livesay, 437 U.S. at 469 (“To come within the
small class of decisions excepted from the final-judgment rule .
. . the order must conclusively determine the disputed question,
[and] resolve an important issue completely separate
from the
merits of the action, . . . An order passing on a request for
class certification does not fall in that category.”) (internal
citations
and
quotations
omitted);
but
see
Dealer
Computer
Servs. v. Dub Herring Ford, 623 F.3d 348 352-53 (6th Cir. 2010)
(noting in dictum that class certification decisions by district
courts
are
traditionally
not
final
determinations
of
parties
substantive rights or the merits of any claim).
District courts have decided whether a party has prevailed
based on the stage of the litigation.
Supp.
2d
at
708
(“[T]his
case
does
See Big Lots, 639 F.
not
show
that
a
decertification victory makes a defendant a prevailing party.”);
Reyes, 2007 U.S. Dist. LEXIS 93056, at *6 (“Based on such a
12
view, EZPawn successfully decertified the class and was clearly
the prevailing party at trial.”).
The Clerk of Court concluded that, “[w]hile it has been
stated that decertification of an FLSA collective action class
is
a
procedural
litigation,
ruling
achieving
collateral
to
decertification
the
merits
is
itself
a
of
the
prevailing
outcome for Defendant regardless of whether opt-in plaintiffs
might be free to then pursue their individual claims.”
Costs 4.)
Frye argues that the Clerk of Court erred because
decertification
between
(Bill of
the
“irrevocable.”
did
not
parties
“‘change
in
a
way
the
legal
that
is
relationship’”
“enduring”
and
See McQueary v. Conway, 614 F.3d 591, 597 (6th
Cir. 2010) (quoting Sole v. Wyner, 551 U.S. 74, 86 (2007)).
Frye also contends that it would be inequitable to tax him, the
sole plaintiff after decertification, for costs attributable to
defending claims of opt-in parties when those claims were never
adjudicated on the merits.
The plaintiff in Reyes objected to decertification costs
that were requested after the defendants had prevailed on the
merits at trial.
The
district
court
Reyes, 2007 U.S. Dist. LEXIS 93056, at *5.
rejected
the
plaintiff’s
contention
that
decertification proceedings should be evaluated separately from
the trial, reasoning that “the Court must view this case as a
whole
to
determine
who
is
the
13
prevailing
party
as
to
[the
decertified] plaintiffs.”
Id. (citing Studiengesellschaft Kohle
v. Eastman Kodak, 713 F.2d 128, 131 (5th Cir. 1983) (“The case
must be viewed as a whole to determine who is the prevailing
party.”).
The district court awarded costs to the defendants.
See id. at *6.
In
the
Sixth
Circuit,
decisions
“on
prevailing
party
statuses [are] limited to the case as a whole on the merits.”
N.A.A.C.P. v. THE DETROIT, No. 89-1065, 1990 U.S. App. LEXIS
17304, at *4 (6th Cir. Sept. 27, 1990).
decertifying
the
collective
action
and
Baptist succeeded in
prevailed
on
summary
judgment.
Compare Reyes, 2007 U.S. Dist. LEXIS 93056, at *6
(“Based
such
on
a
view,
EZPawn
successfully
decertified
class and was clearly the prevailing party at trial.”).
the
collective
nature
of
the
suit,
Baptist
was
the
Given
required
to
defend against the claims of more than four hundred claimants.
Baptist incurred costs not only in pursuing summary judgment,
but
also
in
“being
required
action” at multiple stages.
to
defend
against
See id. at *6.
a
collective
When a defendant
prevails on the merits of the claims for which it seeks costs,
the
victory
is
“not
the
judgment on the merits.”
decertification
of
a
class,
but
a
Big Lots, 639 F. Supp. 2d at 708.
Baptist is entitled to the costs of decertification.
Frye relies on Big Lots, 639 F. Supp. 2d at 709.
reliance is misplaced.
That
In Big Lots, there was no final decision
14
on the merits; the district court denied the defendant’s motion
because
the
defendant
procedural decision.
had
Id.
achieved
only
decertification,
a
The defendant had not “prevailed on
all issues, both procedural and those related to the merits.”
Big Lots, 639 F. Supp. 2d at 708 (distinguishing Reyes, 2007
U.S. Dist. LEXIS 93056, at *6).
the
merits,
“not
the
Here, it was the decision on
decertification
[Baptist] the prevailing party.”
victory,
[that]
made
Id.
C. The Amounts Requested Were Necessary and Included
Under § 1920
Frye
argues
decertification
that
Baptist
because
they
Frye’s substantive rights.
cannot
were
not
recover
the
necessary
costs
to
of
resolve
In the December 22 Bill of Costs,
the Clerk of Court concluded:
[Frye] basically argues that charging [him] with all
of the recoverable costs incurred by Defendant leaves
him holding the bag for 402 other plaintiffs, which
just seems unfair and inequitable. It is pretty clear
that if all costs are charged against Plaintiff Frye,
the opt-in Plaintiffs [sic] would have enjoyed a free
ride at his personal expense.
It is the opinion of
the Clerk that unless the opt-in plaintiffs explicitly
or implicitly agreed to share these expenses when they
signed up as collective action members (and there is
no evidence of this in the record and no proof was
offered at the hearing), they were participating in
the case risk-free, and every plaintiff who opted in
basically
increased
the
financial
exposure
of
Plaintiff Frye.
Why should Defendant, as the
prevailing party in this action, absorb considerable
costs just to relieve Plaintiff Frye of his potential
risk in acting as the representative plaintiff?
Moreover, it was Plaintiff Frye’s option to bundle his
personal claims with hundreds of others by creating a
15
certified class in lieu of pursuing his claims
individually.
There is a risk in his doing so, and
the risk materialized in this action.
(Bill of Costs 4.)
Costs
taxed
under
Rule
54
include
fees
for
printed
or
electronically recorded transcripts and fees for exemplification
and the costs of making copies of any materials where the copies
are “necessarily obtained for use in the case.”
1920.
28 U.S.C. §
“[N]ecessity is determined as of the time of taking, and
the fact that a [document] is not actually used . . . is not
controlling.”
Whitesell Corp. v. Whirlpool Corp., 2010 U.S.
Dist. LEXIS 45251, at *4 (W.D. Mich. May 10, 2010) (quoting
Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989)).
Frye
objects
to
$1,008
for
subpoenaing
certain
opt-in
plaintiffs for depositions, $23,240.60 in court reporting costs,
$26,197.18 in printing charges incurred in scanning Baptist’s
personnel
files,
charges.
(Pl.’s Mem. 9.)
these
costs
are
and
$1,955.85
exemplification
and
copy
He argues that the vast majority of
attributable
should not be taxed to him.
in
to
other
opt-in
plaintiffs
and
Frye contends that Baptist is “only
entitled to recover as taxable costs those charges enumerated in
28 U.S.C. § 1920 which are necessary to the dispositive motion
regarding Mr. Frye, such as the copies of the pleadings that
were actually filed with the court, deposition transcripts cited
16
in
the
dispositive
motion,
or
subpoenas
for
witnesses
testimony was cited in the dispositive motion.”
whose
(Id.)
As to Frye’s initial argument, that costs incurred in the
decertification
proceedings
are
not
taxable
after
a
final
decision on the merits, courts have concluded otherwise.
See
Reyes, 2007 U.S. Dist. LEXIS 93056, at *6 (“EZPawn successfully
decertified the class and was clearly the prevailing party . . .
. [T]he costs incurred were reasonable and necessary given the
collective nature of the lawsuit.”); see also Anderson v. Cagle
Foods
JV,
LLC,
No.
1:00-cv-166
(WLS)
(M.D.
Ga.
2009)
(“This
Court finds the reasoning of Reyes persuasive and thus awards
the $23,017.67 in deposition costs against the plaintiff.”).
The reasoning of these authorities is persuasive and is
consistent with precedent in the Sixth Circuit.
Corp., 2011 U.S. Dist. LEXIS 45251, at *5.
See Whitesell
When Baptist deposed
the opt-in plaintiffs, Baptist “could have reasonably believed
that each of its [depositions] would play an integral role in
the resolution of the case.”
Id.
Discovery related to the
certification of a collective action was necessary to resolve
Frye’s representative action because, when the depositions were
taken, Baptist’s ability to investigate and respond depended on
what was said during depositions.
See In re Kulicke & Soffa
Indus., Inc., Sec. Litig., 747 F. Supp. 1136, 1147 (E.D. Pa.
1990)
(“[T]he
ability
to
respond
17
adequately
to
plaintiff's
pretrial
motions
depended
deposition testimony.”).
in
large
part
on
the
review
of
“The costs incurred in the litigation
occurred as a result of [Baptist’s] being required to defend
against
a
93056,
collective
at
*6.
appropriate.
action.”
Awarding
Reyes,
costs
2007
U.S.
“necessarily
Dist.
LEXIS
incurred”
is
Id.
Frye argues that, even if Baptist’s costs were necessary,
they
would
not
fall
within
the
“exemplification” defined by § 1920.
to
awarding
$5,148.23
in
(“OCR Capture”) charges.
Image
terms
“printing”
or
Specifically, Frye objects
Optical
(Pl’s Mem. 10.)
Character
Recognition
He does not challenge
other costs on this ground.
Courts have recognized that § 1920 “permits the recovery of
a wide range of copying costs, including ‘copies attributable to
discovery,
tendered
copies
to
the
of
pleadings,
opposing
party,
correspondence,
copies
of
documents
exhibits,
documents prepared for the court’s consideration.’”
and
Whitesell
Corp., 2010 U.S. Dist. LEXIS 45251, at *13 (quoting Whirlpool
Corp. v. LG Elecs., Inc., No. 1:04-CV-100, 2007 U.S. Dist. LEXIS
62591, at *5 (W.D. Mich. Aug. 26, 2007)).
OCR Capture is a form of electronic discovery.
Although
the Sixth Circuit has not concluded that OCR Capture falls under
§
1920,
it
has
stated
that
“electronic
scanning
and
imaging
could be interpreted as ‘exemplification and copies of papers.’”
18
BDT
Prods.,
405
F.3d
at
420.
The
question
is
whether
OCR
Capture, which includes the electronic scanning of searchable
documents, qualifies as an exemplification or printing.
The
cases
persuasive.
Frye
cites
to
support
his
objection
are
not
See Monolithic Power Sys., Inc. v. O2 Micro Int’l
Ltd., No. 08-04567 CW (N.D. Cal. Mar. 3, 2011) (“Courts have
concluded that OCR processing of documents are generally for the
convenience of counsel and, thus, expenses related to it are not
recoverable.”) (citing Computer Cache Coherency Corp. v. Intel
Corp., No. C-05-01766 RMW, 2009 U.S. Dist. LEXIS 122596, at *1011 (N.D. Cal. Dec. 18, 2009)).
Numerous courts, including this
one, have concluded that “the costs of electronic scanning and
imaging
of
documents
are
‘exemplification’ costs.”
authorized
under
Section
1920
as
Medison Am., Inc. v. Preferred Med.
Sys., LLC, No. 05-2390, 2008 U.S. Dist. LEXIS 20568, at *5 (W.D.
Tenn. 2008); see also Brown v. McGraw Hill Cos., 525 F. Supp. 2d
950,
959
(N.D.
Iowa
2007);
Race
Tires
Am.,
Inc.
v.
Hoosier
Racing Tire Corp., No. 07-1294, 2011 U.S. Dist. LEXIS 48847, at
*28-29
(W.D.
requirements
Pa.
and
May
6,
2011)
expertise
(“[T]he
necessary
to
Court
finds
retrieve
and
that
the
prepare
these e-discovery documents for production were an indispensable
part of the discovery process [and awards costs].”); Fireman’s
Fund Ins. Co. v. Oregon Auto Ins. Co., No. 03-0025, 2010 U.S.
Dist.
LEXIS
91459,
at
*21
(D.
19
Or.
Sept.
2,
2010)
(“[T]he
scanning
and
OCR
litigation”).
of
documents
was
helpful
throughout
the
OCR Capture in this case was a necessary part of
the discovery process.
Baptist may recover the costs of OCR
Capture.
D.
Plaintiff Assumed the Risk of the Litigation
Frye argues that he would be impoverished by being required
to
pay
costs.
“Among
the
factors
the
district
court
may
properly consider in denying costs to a prevailing party . . .
[is] the losing party’s inability to pay.”
Texler v. Cnty. of
Summit Bd. Of Mental Retardation and Developmental Disabilities,
Nos. 92-3205, 92-3807, 92-3758, 1994 U.S. App. LEXIS 14421, at
*25-26 (6th Cir. June 4, 1994).
Although the losing party’s indigent status is a relevant
factor, Singleton, 241 F.3d at 539, Plaintiff has not submitted
sufficient evidence to justify denying costs.
“The burden is on
the losing party to show that she is unable, as a practical
matter and as a matter of equity, to pay the defendant’s costs.”
Tuggles v. Leroy-Somer, Inc., 328 F. Supp. 2d 840, 845 (W.D.
Tenn. 2004) (citation omitted).
“To invoke the inability to pay
factor, a party must demonstrate not merely that payment would
be a burden, but that she is indigent.”
Id. (citation omitted).
“A party is indigent if she is ‘incapable of paying the courtimposed costs at this time or in the future.’”
Id. (quoting
McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994)).
20
“The
losing party, however, must show an inability to pay to overcome
the presumption that the prevailing party is entitled to recover
costs.
Such
a
showing
can
be
made
documentation of the inability to pay.”
upon
providing
actual
Lewis v. United States,
No. 02-2958 B, 2006 U.S. Dist. LEXIS 17987, at *2 (W.D. Tenn.
Apr. 7, 2006) (quoting Richins v. Deere & Co., 229 F.R.D. 189,
192 (D.N.M. 2004)).
Frye has not provided sufficient details of his financial
condition to demonstrate that he cannot pay the court-imposed
costs at this time or in the future.
See, e.g., Lewis, 2006
U.S. Dist. LEXIS 17987, at *1-2 (affirming taxation of costs
against plaintiff where he claimed that he had “virtually no
money”
and
had
been
unemployed
for
five
years).
Frye’s
affidavit details his income and expenses, but it does not show
why he would be rendered insolvent if ordered to pay costs.
(See Frye Aff. 1-2, ECF No. 416-1); see also Lewis, 2006 U.S.
Dist. LEXIS 17987, at *1-2; Tuggles, 328 F. Supp. 2d at 846
(declining
to
waive
an
award
of
costs
based
on
plaintiff’s
financial condition where plaintiff presented an affidavit from
the Chapter 7 Trustee for her bankruptcy estate stating that her
estate had no assets and from herself stating that her income
only allowed payment of her monthly bills); Richins, 229 F.R.D.
at 194 (affirming taxation of costs because plaintiffs did not
offer
“the
detailed
and
specific
21
information
that
the
Court
could use to determine whether they could pay an $8,000 cost
bill”).
Given the information before the Court, there is no
reason that, as the Clerk of Court concluded, Frye could not
enter
into
an
“installment
facilitate [] payment[].”).
IV.
pay
back
agreement
.
.
.
to
(Bill of Costs 5.)
Conclusion
For the foregoing reasons, Frye’s Motion is DENIED.
Court ADOPTS the Clerk of Court’s award of costs.
The
Frye is
ORDERED to pay Baptist $55,401.63 in costs.
So ordered this 26th day of March, 2012.
s/ Samuel H. Mays, Jr._______
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
22
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