Hostingxtreme Ventures LLC v. Bespoke Group LLC et al

Filing 478

Memorandum Opinion and Order re: 461 Plaintiff's Motion to Exclude Disallowable Costs. Based on the relevant filings and applicable law, the plaintiff's motion is GRANTED, and the defendants' taxable costs will be reduced by $7,862.02, for a total of $9,167.84. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 6/20/2019) (mcrd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
HOSTINGXTREME VENTURES, LLC,
Plaintiff,
v.
BESPOKE GROUP, LLC DIVYESH
PATEL, and HINA PATEL,
Defendants.

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Civil Action No. 3:14-CV-1471-M

Referred to U.S. Magistrate Judge1

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s Motion to Exclude Disallowable Costs, filed September 19,
2018 (doc. 461). Based on the relevant filings and applicable law, the plaintiff’s motion is
GRANTED, and the defendants’ taxable costs will be reduced by $7,862.02, for a total of
$9,167.84.
I. BACKGROUND
On April 22, 2014, HostingXtreme Ventures, LLC (Plaintiff) sued Bespoke Group, LLC
(Bespoke), Divyesh Patel (Divyesh), and his wife, Hina Patel (Hina) (collectively Defendants), for
breach of written contract, breach of the implied covenant of good faith and fair dealing, promissory
estoppel, common law fraud, intentional interference with contractual rights, and negligent
representation.2 (See doc. 1.) On September 11, 2017, the Court granted summary judgment in favor
of Defendants on all but one of Plaintiff’s claims. (See doc. 454.) A jury rendered a verdict in
Defendants’ favor on Plaintiff’s remaining claim on August 15, 2018. (Id.) On that same day, the
Court entered a final judgment in Defendants’ favor and taxed costs against Plaintiff. (Id.)

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By order dated November 3, 2015 (doc. 100), this case was referred for full case management, including the
determination of non-dispositive motions and issuance of findings of fact and recommendations on dispositive motions.
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Plaintiff later voluntarily dismissed Hina from all claims in this suit with prejudice. (docs. 342, 378.)

On August 29, 2018, Defendants submitted their bill of costs seeking $13,916.43 for “printed
or electronically stored transcripts necessarily obtained for use in this case,” and $3,113.43 for
“[f]ees and disbursements for printing,” for a total of $17,029.86. (doc. 458 at 1.)3 On September
12, 2018, the Clerk taxed costs in that amount against Plaintiff. (doc. 459.)
On September 19, 2018, Plaintiff filed a motion seeking review of the Clerk’s taxing of costs
under Fed. R. Civ. P. 54(d)(1). (doc. 461.) It seeks to exclude $2,773.95 in “reproduction charges,”
$4,040.82 in charges for “transcripts of hearings related to discovery motions . . . and discovery
conferences between counsel,” and $1,047.25 in charges for costs related to Hina’s deposition. (Id.
at 3-5.) It argues that: (1) the reproduction charges are not allowable because they appear to be
internal firm charges for copying, (2) there is no authority for the recovery of costs for transcripts
of hearings on discovery motions or conferences between counsel, and (3) Hina’s deposition was
not necessarily obtained for use in this case. (Id.)
Defendants filed their response on October 10, 2018, and Plaintiff did not reply. (doc. 467.)
The motion is now ripe for recommendation.
II. ANALYSIS
Under Rule 54 of the Federal Rules of Civil Procedure, a prevailing party in a civil action
is entitled to recover its costs unless otherwise directed by a court or statute. Fed. R. Civ. P.
54(d)(1). There is “a strong presumption that the prevailing party will be awarded costs.” Schwarz
v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985) (citing Delta Air Lines, Inc. v. August, 450 U.S. 346,
352 (1981)). This presumption is rebuttable, however, and the district court retains the discretion

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Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page
numbers at the bottom of each filing.

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not to award costs. See United States v. D.K.G. Appaloosas, Inc., 829 F.2d 532, 539 (5th Cir. 1987).
“[S]ection 1920 strictly limits the types of costs that may be awarded to a prevailing party.”
Erfindergemeinschaft UroPep GbR v. Eli Lilly and Co., No. 2:15-CV-1202-WCB, 2017 WL
3044594, at *1 (E.D. Tex. July 18, 2017) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.
437, 440–41 (1987)). As noted by the Fifth Circuit Court of Appeals, “[t]he Supreme Court has
indicated that federal courts may only award those costs articulated in section 1920 absent explicit
statutory or contractual authorization to the contrary.” Mota v. Univ. of Tex. Houston Health Sci.
Ctr., 261 F.3d 512, 529–30 (5th Cir. 2001).4 The party seeking recovery of its costs bears the burden
of proving the amount and necessity of its costs. See Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64
(5th Cir. 1994); Fogleman v. ARAMCO (Arabian Am. Oil Co.), 920 F.2d 278, 285–86 (5th Cir.
1991).
A.

Printing Costs
Plaintiff first argues that “reproduction charges” totaling $2,773.95 are not allowable because

they “appear to be . . . internal firm charge[s]” that were not “necessary or used in this case.” (doc.
461 at 3.) Defendants respond that they are entitled to recover these costs because they were
incurred in this litigation for printing “non-dispositive motions, dispositive motions, discovery
production, and deposition exhibits . . . .” (doc. 467 at 4.)
Under § 1920(3), “[f]ees and disbursements for printing” are allowable taxable costs,
provided that the prevailing party demonstrates that the printed documents were “necessarily

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Taxable costs include: (1) fees paid to the clerk and marshal; (2) fees paid to the court reporter or stenographer
for all or part of the stenographic transcript necessarily obtained for use in the case; (3) witness fees and related expenses;
(4) printing costs; (5) fees for exemplification and copies of papers necessarily obtained for use in the case; and (6) fees
of court appointed experts, interpreters and special interpretation services. 28 U.S.C. § 1920.

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obtained for use in the case.” 28 U.S.C. § 1920(3); W&T Offshore, Inc. v. Apache Corp., No. H-112931, 2015 WL 12765421, at *2 (S.D. Tex. Oct. 28, 2015); see Fogleman, 920 F.2d at 286
(“reproductions necessarily obtained for use in the case are included within taxable costs, provided
that the prevailing party demonstrates that necessity.”). The Fifth Circuit has explained that “[the
losing party] should be taxed for the cost of reproducing relevant documents and exhibits for use in
the case, but should not be held responsible for multiple copies of documents, attorney
correspondence, or any of the other multitude of papers that may pass through a law firm’s xerox
machines.” Fogleman, 920 F.2d at 286. While taxable costs include charges for reproducing
documents “as part of discovery and the copies of documents filed with the court,” “[e]xtra copies
for the convenience of counsel are not considered necessary for these purposes and [are] therefore
not taxed as costs.” Iniekpo v. Avstar Int’l Corp., No. SA-07-CA-879-XR, 2010 WL 3909321, at
*2 n.21 (W.D. Tex. Sept. 30, 2010).
Here, Plaintiff seeks to exclude “reproduction charges” that are shown in Defendants’
counsel’s “Summary of Expenses for Color [and Non-Color] Reproduction Charges, Prepared on
August 27, 2018 . . . .” (docs. 461 at 3; 458-1 at 3-4, 25.) The summary identifies “reproduction
charges” in the amounts of $2,185.95 for non-color reproduction charges, and $588.00 for color
reproduction charges, for a total of $2,773.95, but does not contain any other information. (doc.
458-1 at 25.) Defendants do not present any argument or evidence showing that the printing charges
for “non-dispositive motions, dispositive motions, discovery production, and deposition exhibits”
were necessarily incurred for use in this case, however, and they have not shown that the printing

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charges were incurred for any purpose other than for their convenience.5 Rather, they “simply
provid[e] the . . . statement of charges,” which does “not necessarily demonstrate the necessity of
such prints . . . .” Castone Corp. v. Advanced Cast Stone, Inc., No. 1:10CV287-HSO-JMR, 2012
WL 13018538, at *7 (S.D. Miss. Aug. 8, 2012). Additionally, the Fifth Circuit has held that “costs
incurred ‘merely for discovery’ do not meet [the] standard” of being “‘necessarily obtained for use
in the case.’” Rundus v. City of Dallas, Tex., 634 F.3d 309, 316 (5th Cir. 2011).
Because Defendants have not shown that the printing charges were necessarily obtained for
use in this case, rather than for their convenience, Plaintiff’s request to exclude the $2,773.95 for
“reproduction charges” is granted, and the amount of taxable costs will be reduced by this amount.
See Castone Corp., 2012 WL 13018538, at *7 (finding that a request for printing costs should not
be awarded where the prevailing party failed to meet its burden to show the necessity of obtaining
the prints at issue); see also Melchior v. Hilite Int’l, Inc., No. 3:11-CV-3094-M (BH), 2016 WL
1165911, at *4 (N.D. Tex. Feb. 26, 2016) (finding that objections to costs for printing should be
sustained where the prints were not necessarily obtained for use in the case), adopted by 2016 WL
1161992 (N.D. Tex. Mar. 23, 2016).
B.

Transcript Costs
Plaintiff next argues that $4,040.82 for certain transcript costs is not recoverable because

there is no authority allowing recovery of costs “for transcripts of discovery hearings and meetings
between counsel in conferring over discovery issues . . . .” (doc. 461 at 4.) Defendants respond that
such costs are recoverable because they were necessarily obtained for use in this case in order to

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Notably, it is unnecessary in most cases to print such documents for filing with the court because the local
rules require parties to file them electronically. See L.R. 5.1(e). Defendants have not shown that the printed documents
were incurred to satisfy the presiding judge’s specific requirements for copies.

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defend against Plaintiff’s untrue allegations regarding Defendants’ conduct at hearings and
conferences. (doc. 467 at 2.)
“Fees for printed or electronically record transcripts necessarily obtained for use in the case”
may be taxed as costs under 28 U.S.C. § 1920(2). See Gonzales v. Pan Am. Labs., L.L.C., No. 3:14CV-2787-L, 2018 WL 2321896, at *2 (N.D. Tex. May 4, 2018) (quoting 28 U.S.C. § 1920(2)).
“Because the statute refers only to ‘transcripts necessarily obtained for use in the case,’ transcripts
of motion hearings and on-the-record-conferences with the court are recoverable when the court
finds that ‘they were not obtained primarily for the convenience of the parties but were necessarily
obtained for use in th[e] case.’” Crevier-Gerukos v. Eisai, Inc., No. H-11-0434, 2014 WL 108730,
at *1 (S.D. Tex. Jan. 9, 2014) (quoting Studiengesellschaft Kohle mbH v. Eastman Kodak Co., 713
F.2d 128, 133 (5th Cir. 1983)). “‘A finding of necessity is a factual finding’” to be made by the
court. Id.; see Fogleman, 920 F.2d at 285–86.
Here, Defendants do not specify how the transcripts from hearings and conferences were
necessarily obtained for use in this case other than stating that they were obtained to defend against
Plaintiff’s untrue allegations. (doc. 467 at 2.) They do not provide any other explanation as to why
they were necessary for use in this case, or any information regarding how they were used to defend
against any untrue allegations. See Gonzales, 2018 WL 2321896, at *2. The supporting invoices
“offer no description of the transcribed meetings,” and there is no other evidence showing that the
transcripts from the hearings and conferences “were necessarily obtained for use in the case as
opposed to being obtained primarily for the convenience of counsel.” Id.; Structural Metals, Inc.
v. S & C Elec. Co., No. SA:09-CV-984-XR, 2013 WL 3790450, at *2 (W.D. Tex. July 19, 2013).
“Additionally, the Court is under no obligation to search the record to verify the transcripts ‘were
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used or the extent to which they were used’ in the case.” Standley v. Rogers, No. SA-14-CA-00977XR, 2016 WL 5859677, at *2 (W.D. Tex. Oct. 6, 2016) (quoting Structural Metals, Inc., 2013 WL
3790450, at *2 n.1). Without any information regarding the necessity of the transcripts other than
Defendants’ conclusory arguments, such fees are not allowable as costs. Gonzales, 2018 WL
2321896, at *2. Accordingly, Defendants have failed to show that the $4,040.82 in costs for various
transcripts of hearings and conferences were necessarily obtained for use in this case, and Plaintiff’s
request to exclude those costs will be granted. See Gonzales, 2018 WL 2321896, at *2 (disallowing
fees for transcripts of recorded meetings where there was no information showing that they were
necessarily obtained for use in the case); Standley, 2016 WL 5859677, at *2 (declining to award
costs for a hearing transcript where the defendant failed to show that it was necessary for use in the
case). The amount of taxable costs will also be reduced by this amount.
C.

Deposition Costs
Plaintiff finally seeks to exclude all costs related to the certified copy of the transcript of

Hina’s deposition. (doc. 461 at 4.) Defendants respond that these costs are recoverable because the
deposition transcript “was necessarily obtained for use in this case . . . .” (doc. 467 at 3.)
“A prevailing party may recover the costs of taking, transcribing, and reproducing
depositions that are ‘necessarily obtained for use in the case.’” Motion Games, LLC v. Nintendo Co.,
Ltd., No. 6:12-CV-00878-RWS-JDL, 2016 WL 9136171, at *5 (E.D. Tex. Oct. 24, 2016) (quoting
28 U.S.C. § 1920(2)), adopted by 2017 WL 3615436 (E.D. Tex. Jan. 4, 2017); see Fogleman, 920
F.2d at 285. “A deposition or deposition copy ‘need not be introduced into evidence at trial in order
to be ‘necessarily obtained for use in the case’ under § 1920; rather, the cost of a deposition or copy
that is reasonably expected to be used for trial or trial preparation may be taxable.” United States
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ex rel. Long v. GSDMIdea City, L.L.C., 807 F.3d 125, 130 (5th Cir. 2015) (citing Fogleman, 920
F.2d at 285–86). “Whether a deposition or copy was necessarily obtained for use in the case is a
factual determination within the district court’s discretion,” and district courts are provided “great
latitude in this determination.” Id.
“It is generally recognized that the basic costs of an original deposition transcript and one
copy are taxable against the non-prevailing party.” Favata v. Nat’l Oilwell Varco, LP, No. 2:12-CV82, 2014 WL 5822781, at *3 (S.D. Tex. Nov. 10, 2014); see also E.A.F.F. v. United States, No. SA08-CA-124-XR, 2014 WL 2155263, at *2 (W.D. Tex. May, 22, 2014) (awarding costs for one copy
of deposition transcripts). “However, charges for multiple or certified copies of depositions are not
taxable as costs absent some showing of why the extra copies were needed in addition to the
originals.” Fast Memory Erase, LLC v. Spansion, Inc., No. 3-10-CV-0481-M-BD, 2010 WL
5093945, at *7 (N.D. Tex. Nov. 10, 2010) (citing cases), adopted by 2010 WL 5093944 (N.D. Tex.
Dec. 13, 2010). Additionally, incidental costs associated with taking the depositions, such as the
costs for disks, delivery charges, and indexing, are generally not recoverable. See Motion Games,
LLC, 2016 WL 9136171, at *5 (citing Maurice Mitchell Innovations, L.P. v. Intel Corp., 491 F.
Supp. 2d 684, 687 (E.D. Tex. 2007)) (stating that incidental expenses are not recoverable costs);
Neely v. PSEG Texas, LP, No. MO-10-CV-030, 2012 WL 12877922, at *3 (W.D. Tex. Oct. 25,
2012) (finding that “services incidental to the depositions that are for the convenience of counsel,
such as summaries, manuscripts, keyword indices, litigation . . . disks, videos, exhibits, postage, and
delivery” were not recoverable costs).
Here, Defendants seek $1,047.25 for costs associated with the certified copy of Hina’s
deposition. (docs. 458-1 at 2, 18; 467 at 3.) Although they contend that Hina’s deposition was
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necessarily obtained for use in this case, they fail to present any argument or evidence showing why
a certified copy, which included a word index, was needed in addition to the original deposition
transcript. See Fast Memory Erase, LLC, 2010 WL 5093945, at *7; see Motion Games, LLC, 2016
WL 9136171, at *5 (citing Maurice Mitchell Innovations, L.P., 491 F. Supp. 2d at 687) (recognizing
that incidental costs such as indexing are generally not recoverable). The only evidence presented
in support is the invoice showing the charge for the certified copy and word index of the deposition.
(doc. 458-1 at 18.) The invoice does not reflect whether it included the cost of the original
deposition transcript and a copy. Because Defendants provide “no reason . . . for why the certified
cop[y] was necessary,” it appears that it was only obtained for the convenience of counsel. See Fast
Memory Erase, LLC, 2010 WL 5093945, at *7. Accordingly, Plaintiff’s request to exclude the
$1,047.25 in costs associated with the certified copy of Hina’s deposition is granted, and the amount
of taxable costs will be further reduced by this amount. See id. (sustaining objections to costs for
certified copies of depositions where the prevailing parties “failed to demonstrate why they needed
certified copies in addition to originals of the deposition transcripts.”).
III. CONCLUSION
Plaintiff’s motion to exclude is GRANTED, and the amount of taxable costs will be reduced
by $7,862.02, for a total of $9,167.84.
SO ORDERED on this 20th day of June, 2019.

___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

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