ENSCO Offshore Company
OPINION AND ORDER re: 191 Bill of Costs (Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)
United States District Court
Southern District of Texas
February 16, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
In the Matter of the Complaint of
ENSCO Offshore Company, as Owner
of the modu ENSCO 74 for
Exoneration from or Limitation
David J. Bradley, Clerk
CIV. A. NO. H-09-2838
OPINION AND ORDER
Pending before the Court in the above referenced exoneration
from or limitation of liability action, pursuant to 46 U.S.C. §
30501, et seq., civil and maritime, in which the Fifth Circuit has
affirmed this Court’s final judgment, including an award of taxable
Skipsrederi AS (collectively, “KGJS”), are the following: (1)
supplemental memorandum #196 (supporting invoices and information
for claimed costs and additional costs for transcripts not included
in the original bill); and supplement #201 (requesting $104.50 for
copies at $.15 per page on appeal)); (2) KGJS’s objections (#192)
to amounts claimed in ENSCO’s original bill of costs; (3) KGJS’s
objections (#197) to #196; and (4) KGJS’s response (#204) to #201.
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,
Baisden v. I’m Ready Productions, Inc., 793
F. Supp. 2d 970, 973 (S.D. Tex. 2011), citing Pacheco v. Mineta,
448 F.3d 783, 793 (5th Cir.), cert. denied, 549 U.S. 888 (2006).
Taxation under Rule 54(d) is subject to the court’s discretion, but
the rule “‘contains a strong presumption that the prevailing party
will be awarded costs.’”
Id., citing id.
held that a court must state a good reason for denying or
reducing a prevailing party’s request for costs.
Id., citing id.
To determine who is the prevailing party the court must view the
case as a whole;
“ party need not prevail on every issue in order
the be entitled to costs.”
Fogelman v. ARAMCO, 920 F.2d 278, 285
(5th Cir. 1991).
The court may only tax costs for items listed in 28 U.S.C. §
Id., citing id.
Title 28 U.S.C. § 1920 (“Taxation of
Costs”), as amended in 2008, provides,
A judge or clerk of any court 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
(3) Fees and disbursements for printing and
(4) Fees for exemplification and the costs of
making copies of any materials where the copies are
necessarily obtained for use in the case1;
Although the prevailing party need not identify every
xerox copy made for use in the legal proceedings, it must make
some showing that “reproduction costs necessarily result for that
litigation,” Fogelman, 920 F.2d at 286.
While it need not
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts,
compensation of interpreters, and salaries, fees,
expenses and costs of special interpretation
services under section 1828 of this title.
“[E]xpenses that are not authorized by statute must be borne by the
party incurring them.”
Baisden, 793 F. Supp. 2d at 973.
“‘district court may decline to award costs listed in the statute
but may not award costs omitted from the list.’”
Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993),
cert. denied, 510 U.S. 1195 (1994). When the opposing party raises
objections to the costs sought, the costs seeker “bears the burden
of verifying that the costs were necessarily incurred in the case
rather than just spent in preparation and litigation of the case.”
Baisden, 793 F. Supp. 2d at 973, citing Fogelman v. ARAMCO, 920
F.2d 278, 286 (5th Cir. 1991).
Title 28 U.S.C. § 1821, in conjunction with 28 U.S.C. §
1920(3), governs necessary expenses for witnesses who appear at
deposition and or trial, including fees, travel expenses, and
Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir.
1994); Baisden, 793 F. Supp. 2d at 979.
“28 U.S.C. § 1821(d)(2)
describe each item, “some information of the types or categories
of documents copied and the reason for the copies must be
furnished.” Kellogg Brown & Root Intern., Inc. v. Altania
Commercial Mktg. Co. W.L.L.I, Civ. A. No. H-07-2684, 2009 WL
1457632, at *6 (S.D. Tex. May 26, 2009).
See pages 21-22 of this Opinion and Order.
does not . . . permit the [subsistence] award of ‘actual costs,’
but limits such awards to the per diem rate.’”
Baisden, 793 F.
Supp. 2d at 980, citing United Teacher Associates Insurance Co. v.
Union Labor life Insurance Co., 414 F.3d 558, 575 & n.12 (5th Cir.
ENSCO’s Bill of Costs (#191 and 196)
ENSCO’s bill of costs, supported by an affidavit from counsel
Lawrence R. Marcay, III, and supplemented by #196, requested the
Fees of the Clerk . . . . . . . . . . . . . . . $350.003
Fees for service of summons and subpoena . . .$4,892.304
Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case . . $62,145.895
In its response (#204) to ENSCO’s supplemental bill of
costs, KGJS agrees that ENSCO is entitled to recover this sum.
In its response (#204), KGJS states that ENSCO should
recover nothing for fees for private process service.
The individual depositions and their costs are identified
in Exhibit B. This Court observes that the Fifth Circuit has
[A] deposition need not be introduced into evidence at
trial in order to be “necessarily obtained for use in
the case.” If, at the time it was taken, a deposition
could reasonably be expected to be used for trial
preparation, rather than merely for discovery, it may
be included in the costs of the prevailing party.
Similarly, a deposition or copy obtained for use during
trial or for trial preparation, rather than for the
mere convenience of counsel, may be included in taxable
costs. Whether a deposition was necessarily obtained
for use in the case is a factual determination to be
made by the district court. We accord the district
Fees and disbursements for printing . . . . . $3,397.686
Fees for witnesses . . . . . . . . . . . . . $30,711.527
Fees for exemplification and costs of making copies of
any materials where the copies are necessarily obtained
for use in the case . . . . . . . . . . . . .$71,518.288
Other costs . . . . . . . . . . . . . . . . $95,527.23
ENSCO’s Supplemental Bill of Costs . . . . . . $184.509
TOTAL . . . . . . . . . . . . . . . . . . . $264,173.4010
(listed on Exhibit E) are costs “that equity mandates be taxable in
this matter,” including $75,752 for the Bond for Stipulation of
Value, which was recorded with the Court’s Clerk, and $19,775.23 in
court great latitude in this determination.
Fogelman v. ARAMCO, 920 F.2d 278, 285-86 (5th Cir. 1991).
In its response (#204) KGJS states that ENSCO is entitled to
recover only $2,897.25 for transcript fees.
Costs for Legal Notice printed in the Houston Chronicle for
4 days and online for 22 days in October 2009.
In its response, KGJS represents that ENSCO is entitled to
nothing for fees and disbursements for printing.
Specified for each witness, along with lodging costs for
those from outside Houston, Texas, in Exhibit D to #191 and
Exhibit 1 to #196.
In #204 KGJS suggests reducing this sum to $23,839.43.
According to #204, KGJS would award nothing for the last
KGJS’s suggested total award in costs in #204 is
travel costs relating to attending a vessel inspection and crew
depositions in Turkey and two trips to Norway to attend the 30B(6)
deposition of a claimant.
Because in #196 ENSCO has satisfied a number of KGSJ’s
objections to the absence of evidence to support its claims of
cost, the Court will not address those challenges.
KGJS first objects to ENSCO’s effort to recover (1) bond
premiums, publishing costs and attorney travel costs; (2) fees paid
to private process servers; (3) deposition costs without any
deposition costs beyond the claims of KGJS; (5) excessive costs for
copying documents; (6) excessive witness costs associated with
lodging per diems and unsupported air fare reimbursements; (7)
witness costs in connection with the presence of ENSCO’s corporate
representative; and (8) witness costs claimed for witnesses who did
not actually testify at trial.
“The great weight of authority establishes that because bond
premiums are not listed in [§ 1920], they are unrecoverable as
Oldendorff Carriers GmbH & Co. KG v. Grand China Shipping
(Hong Kong) Co. Ltd., Civ. A. No. 2:12-CV-74, 2013 WL 5424956, at
*2 (S.D. Tex. Sept. 26, 2013).
Therefore, argues KGJS, ENSCO’s
claim for $75,752.00 for bond premiums paid for a “Bond for
Stipulation of Value,” should not be allowed.11
KGJS also objects to ENSCO’s request to recover $19,775.23 in
“other costs” relating to travel and lodging of its attorneys for
three international trips for depositions and vessel inspections,
as well as to $3,397.68 for costs publishing the Legal Notice of
the Limitation Action because such an expense is outside the reach
of § 1920.
Similarly KGJS maintains that fees of $4,892.30 for private
process servers are not recoverable under the statute “absent
Marmillion v. Am. Int’l Ins. Co., 381
Fed. Appx. 421, 431 (5th Cir. 2010)(per curiam).
KGJS objects to ENSCO’s request for deposition transcript
costs because it has failed to show that any of the transcripts for
which it seeks recovery were necessary to the case, a number of
deposition transcripts had no bearing on the trial of KGJS’s claims
and KGJS did not attend them.
It argues that counsel’s supporting
affidavit was merely insufficient, bare support as it does not
establish that the costs were necessary, or why the costs of
ENSCO points out that in Oldendorff, in which defendants
as prevailing parties sought to recover $95,464 in bond premiums,
the bond was not mandatory, but the defendant chose to post a
Special Release Bond to have the vessel released rather than
remain under arrest until the Court reviewed the matter.
Nevertheless this Court agrees that the Oldendorff court also
emphasized that “the great weight of authority establishes that
because bond premiums are not listed in [§ 1920], they are
unrecoverable as costs.” Id. at *2.
witnesses in Turkey and Norway were so expensive.
that four of the transcripts related to the claims of four other
pipeline claimants (Sea Robin Pipeline Company, LLC, Stingray
Pipeline Company, LLC, Tennessee Gas Pipeline Company, and High
Island Offshore System, LLC), whose claims were settled before
trial and thus they were not necessarily obtained in preparation
for litigation of this case.
Furthermore ENSCO’s trial witness
list does not include any of the names KGJS lists as irrelevant
(Jeffrey Molinaro, Gregory Watkins, Richard Reggio, James Messman,
Sean Meehan, Georgy Loy, Stuart Babin, Paul Clayton, Jerry Rau,
George Vandervoort, Robert Francini, Lee Swanger, Gerhardus Koch,
and Joseph Sowell) to the trial of KGJS’s claims.
KGJS further objects that ENSCO has provided only a conclusory
assertion that the $75,518.28 in costs for copies was necessary for
this case. Claiming 10 cents per page, ENSCO asks to recover costs
for copies of approximately 755,183 pages, a sum which KGJS argues
is an exorbitant amount for this case.
KGJS also complains that
ENSCO made no effort to separate copying costs for KGJS’s claims
from those of the other four claimants.
Thus KGJS asks the Court
to disallow or reduce ENSCO’s excessive copying costs.
In addition, argues KGJS, ENSCO’s claimed costs for witnesses,
including fees and travel costs, exceed maximum per diem rates. 28
U.S.C. § 1821(d) provides in relevant part,
A subsistence allowance for a witness shall be paid in an
amount not to exceed the maximum per diem allowance by
the Administrator of General Services, pursuant to
section 5702(a) of title 5, for official travel in the
area of attendance by employees of the Federal
It is an abuse of discretion for a district court to award
subsistence costs for more than the per diem rate authorized by §
United Teacher, 414 F.3d at 575.
Federal per diem
rates are maintained by the General Services Administrator at
Baisden, 793 F. Supp. 2d at 980 n.28.
For fiscal year 2014, the maximum lodging rate for Houston was
$118.00 per night.
1821(c) establishes the standard for maximum allowable rates for
A witness who travels by common carrier shall be paid for
the actual expenses of travel on the basis of the means
of transportation reasonably utilized and the distance
necessarily traveled to and from such witness’s residence
by the shortest practical route in going to and returning
from the place of attendance.
Such a witness shall
utilize a common carrier at the most economical rate
reasonably available. A receipt or other evidence of
actual costs shall be furnished.”
KGJS charges that ENSCO improperly claimed costs greater than the
per diem rate and did not provide a single receipt for the claimed
ENSCO claims rates for thirty nights, which under the
allowable per diem is $3,540, so the court must reduce ENSCO’s
requested claim of $14,227.30 to the allowable sum.
KGJS also maintains that ENSCO’s claimed airfare allowances
have no evidentiary support to show they were reasonable or that
witnesses used a common carrier with the most economical rate
It also failed to submit receipts or any
other evidence of its actual cost beyond a spreadsheet.
Nor, insists KGJS, can ENSCO recover witness costs for its
corporate representative, Julie Slocum.
Because “[w]itnesses who
are corporate officers or employees are not necessarily real
parties in interest,’” recovery of taxable costs for the presence
of corporate representatives “depends on whether ‘their interest in
the litigation is no more than a natural concern for the welfare of
litigation to the extent they become identifiable as a party in
interest.’” Crevier-Gerukos v. Eisai, Inc., Civ. A. No. H-11-0434,
SchmitzWerke GmbH & Co. v. Rockland Indus., Inc., 271 F. Supp. 2d
734, 736 (D. Md. 2003), and Electronic Specialty Co. v. Int’l
representative Julie Slocum’s office is in Houston, she was not
called to testify, and was not a participant in the litigation, but
merely present out of natural concern for the welfare of ENSCO, so
the Court should disallow the claimed $531.54 for her witness
Lastly, citing Nissho-Iwai Co. v. Occidental Crude Sales,
F.2d 1530, 1553 (5th Cir. 1984), KGJS objects to ENSCO’s
claim for $749.58 in costs for witnesses who did not testify at
Bob Christ ($26.44); David Gaudin ($84.04); David Menzies
($77.53); Sharon Fowler, ($77.53); Steve Hopkins ($84.04), for a
total of $749.58.
ENSCO’s Supplemental Memorandum (#196) and
the Court’s Decision
Supplementing the affidavit of counsel, ENSCO provides copies
of invoices and supporting information for its claimed costs, plus
compiled and organized the invoices.
Regarding the requested $75,752 for costs in procuring the
Bond for Stipulation of Value, ENSCO points out that it was
mandatory to procure it for this case by 46 U.S.C.S. § 3051112 of
the Limitations of Liability Act as security for payment of claims
and thus the sum should be taxed as a necessary cost.
Constr. Servs. v. United States, 117 Fed. Cl. 408, 418 (Fed. C.
2014)(holding that costs were taxable because procurement of bond
was required to proceed with the litigation).
While the Court agrees that the bond is required from a
Section 30511(b) states,
Creation of fund.-–When the action is brought, the
owner (at the owner’s option) shall(1) deposit with court, for the benefit of
(A) an amount equal to the value of the
owner’s interest in the vessel and pending
freight, or approved security . . . .
petitioner for limitation of liability,13 that fact does not mean
In admiralty the words “bond” and “stipulation” are
frequently interchangeable. W.R. Habeeb, “Taxable costs and
disbursements as including expenses for bonds incident to steps
taken in action,” 90 A.L.R. 2d 448 (originally published 1963),
citing 2 Am. Jur. 2d, Admiralty § 157.
It is clear that a bond is required for a limitation of
liability petitioner. See In re Lynx Production Services, 2014
WL 1378869, at *3 (E.D. La. Apr. 8, 2014), citing Black Diamond
S.S. Corp. v. Robert Steward & Sons, 336 U.S. 386, 401
(1940)(stating that petitioning for limitation of liability and
posting bond are “condition precedent to obtaining a forum
concursus to adjudicate liability.”); In re Fagerlin, No. C-085225 SI, 2009 WL 393772, at *4 (N.D. Cal. Feb. 13, 2009)(“[I]n an
admiralty proceeding such as this, a stipulation is all that is
needed for security-–i.e., not a deposit of cash or a posting of
Moore’s Federal Practice treatise explains: “[A]
stipulation is generally accepted as security if backed up by
insurance covering the vessel’s potential liabilities. If there
is no insurance, or the insurance is inadequate to cover the
value of the vessel . . ., or alternatively, the amount of the
claims against the owner, then other forms of security may be
required such as a bond or cash.”), citing 29-708 Moore’s Fed.
Prac.--Civ. § 708; and 3 Benedict on Admiralty § 14, at 2-12 (7th
ed. 2008)(“If the ship is still useful to [the shipowner], and he
desires to keep her in operation, he will have her appraised and
furnish the court with an approved surety company stipulation or
pay the cash value for which the ship is appraised, plus
freight.”). Regarding “Security for value and Interest,” id.,
the Fagerlin court wrote, “Both the Limitation of Liability Act
and Supplemental Admiralty Rule F require a plaintiff (1) to
deposit a certain amount of security with the court or (2) to
transfer his interest in the vessel and pending freight to
trustee to be appointed by the court, in order to proceed with an
action for limitation of liability.” See also In re Everglades
island Boat Tours, LLC, No. 2:13-cv-001-FtM-UA-SPC, 2013 WL
315468, at *1 (M.D. Fla. Jan. 9, 2013)(“Pursuant to the statute
[§ 30511], upon the shipowner’s filing of the petition and his
tender of a bond [covering the value of the vessel and its
freight], the district court must enjoin all other proceedings
against the shipowner involving issues arising out of the subject
matter of the limitations action.”). See also In re Miller
Marine Services, Inc., 2013 WL 5460937, 2014 A.M.C. 133, 134-35
(E.D.N.Y. Sept. 30, 2013)(“As required by the Limitation Act,
Miller Marine also posted a $515,000 bond with the court, an
that the cost is taxable.
After researching the issue, the Court
finds that federal courts vary in their conclusions.
held that “premiums paid on bonds incident to steps taken in the
action” are taxable as costs where there is a usage, custom or
practice in the district permitting such taxation, and that such
premiums are not taxable as costs in districts where there is no
such usage, custom or practice.”
W.R. Habeeb, “Taxable costs and
disbursements as including expenses for bonds incident to steps
taken in action,” 90 A.L.R. 2d 448 (originally published 1963),
citing Kroger Grocery & Baking Co. v. Martin, 97 F.2d 348 (6th Cir.
1938)(refusing to tax the premiums and expenses for bonds as costs
because there was no established usage in the Sixth Circuit, but
noting the Second Circuit has such a custom and usage), cert.
denied, 305 U.S. 631 (1938). But see The American Tobacco Co. v.
Steamship Katingo Hadjipatera, 115 F. Supp. 269, 269 (S.D.N.Y.
1953)(“A successful petitioner for limitation of liability must
stand as a part of expenses incurred for the purpose of availing
itself of the Act, the expense of its ad interim stipulation,
whether bond premium or cost of collateral.
Such expenses are not
taxable as a part of the costs.”), aff’d, 211 F.2d 666 (2d Cir.
1954), cert. denied, 348 U.S. 828 (1954); Martin Marine Transp. Co.
amount equal to the Megan T. Miller’s appraised value. . . . Both
Supplemental Rule F and the Act require the petitioner to post
security with the court, which usually consists of a bond equal
to the value of the vessel, for future distribution (if
necessary) to the claimants.”).
v. Peterson, 135 F.2d 325, 328 (2d Cir. 1943)(Petitioner must bear
the cost of filing petition, stipulations for costs and value,
premium for stipulations, and expense of appraisal” as these costs
are not taxable), citing The W.A. Sherman, 167 F. 976, 977 (2d Cir.
1909)(“Expenses [the petitioner] has incurred for the purpose of
availing himself of the act of Congress he should stand,” including
stipulations for costs and value, premium for stipulations, and
expense of appraisal) .
In 10 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane,
Richard L. Marcus, A. Benjamin Spencer, and Adam N. Steinman,
Federal Practice & Procedure Civ. § 2677 (3d ed. Apr. 2016 update),
the authors wrote,
A number of federal courts have supplemented the
statutory provisions for the allowance of costs . . .
through local rules, by customs and usage, and by the use
of their equity power. Yet even though there are these
sources of judicial power to tax costs beyond those
provided for in the statute, the courts have said they
should be used “sparingly,” or only in “exceptional
Federal courts often allow the taxation of trialconnected expenses when they meet the test prescribed in
both subdivision (2) and subdivision (4) of Section 1920
of Title 28 for “transcripts” and “materials” that are
“necessarily obtained for use in the case.” For example
courts will allow the taxation of expenses for . . .
bonds14 because these costs usually are associated with
items that meet the underlying statutory standard.
ENSCO bears the burden of showing that it is entitled to tax
Citing Newton v. Consolidated Gas Co. of New York, 265
U.S. 78 (1924)(recognizing allowance of costs as taxable based on
long usage and/or equity).
the cost of the bond against KGSJ.
Because ENSCO has not shown nor
cited an authority indicating that the Fifth Circuit has a usage or
custom of taxing the cost of the bond in a limitation of liability
case or allowing taxation of the cost of a bond as a necessary
expense to bring a limitation of liability proceeding, because it
has not shown any special circumstances justifying taxation, and
because the cost of a bond is not listed in § 1920, the Court in
its discretion will not allow the requested amount to be taxed
Nor does § 1920 include travel expenses for counsel. Giner v.
Estate of Higgins, 2012 WL 2397440, at *3 (W.D. Tex. Jun 22, 2012),
citing Coats, 5 F.3d at 891.
See also Alonso v. Union Oil Co. of
Calif., 71 F.R.D. 523, 525 (S.D.N.Y. 1976)(“Ordinarily, travel
expenses of counsel in attending a deposition are not taxed as
costs.”), citing Wahl v. Carrier Mfg. Co., 511 F.2d 209, 216 (7th
Cir. 1975) and 6 J. Moore, Federal Practice ¶¶ 54.77 at 1725 and
54.77 at 1751 (2d ed. 1976); Augustine v. United States, 810
F.2d 991, 996 (10th Cir. 1987)(denying counsel’s travel expenses);
Centennial Management Services, Inc. v. Axa Re Vie, 196 F.R.D. 603,
607 (D. Kan. 2000)(travel expenses incurred by prevailing breachof-contract plaintiff’s counsel to attend deposition of defendant’s
overseas employees were not taxable as costs absent a showing of
($75,752 for the Bond for Stipulation of Value and $19,7775.23 for
travel expenses) for “other costs.”
required by the Limitation of Liability Act, ENSCO here, too,
argues that they are taxable as costs related to this litigation
and notes and that the Fifth Circuit has held that generally
inclusion of a variety of items outside the scope of § 1920 is
within the discretion of the district court.
Hodge v. Seiler, 558
F.2d 284 (5th Cir. 1977).
This Court notes that Hodge is easily distinguishable from the
situation in the instant case.
Hodge dealt with the unlawful
denial to a couple of an apartment rental because of the husband’s
race. The husband was awarded compensatory and punitive damages by
the court, but the court denied attorney’s fees and the costs of
transportation of the husband and wife to attend trial in Louisiana
because costs for a party’s travel expenses are not included in §
The Fifth Circuit panel in Hodge emphasized that
“‘the discretion given district judges to tax costs should be
sparingly exercised with reference to expenses not specifically
allowed by statute.’”
558 F.2d at 287, quoting Farmer v. Arabian
American Oil Co., 379 U.S. 227, 235 (1964).
Nevertheless in Hodge
it found an exception because of “the strong policies which lie
behind remedial civil rights legislation, and the need to ensure
that those who defend their rights are not financially penalized”
and therefore “we cannot say the district court acted improperly.”
In the instant suit, civil rights violations and the policies
relating to them are not relevant.
Thus here, too, the Court
denies the request for publishing expenses as outside the scope of
ENSCO maintains that courts routinely allow the use of private
process servers for serving civil summonses and subpoenas and
permit their fees to be allowed as costs in the Fifth Circuit.
Gaddis v. United States, 381 F.3d 444, 456 (5th Cir. 2004)(en
banc)(noting that “section 1920(1)’s phrase ‘[f]ees of the clerk
and marshal’ has been interpreted by the Ninth Circuit to include
private process servers’ fees as taxable costs because the service
of summons and subpoenas is now done almost exclusively by private
parties employed for that purpose, not the U.S. Marshal, even
though there is no express provision authorizing the payment of
private process servers in § 1920.”
See also Katz v. State Farm
Fire & Casualty Co., Civ. A. No. 06-4155, 2009 WL 3712588, at *2
(E.D. La. Nov. 4, 2009)(“courts often allow for taxation of”
private process servers, “especially when locating witnesses is
cumbersome,” as was the case there); Johnson v. City of Monroe,
Civ. A. No. 06-0635, 2008 WL 695262, at *3 (W.D. La. Mar. 12,
2008)(citing Gaddis); and Landry v. St. James Parish School Board,
No. Civ. A. 99-1438, 2000 WL 1741886, at *1 (E.D. La. Nov. 22,
2000)(Because in most cases a party must employ a private process
server, such fees have been allowed as costs).
This Court would point out that, contrary to the holding in
Katz, the Fifth Circuit in Cypress-Fairbanks I.S.D. v. Michael F.
by Barry F., 118 F.3d 245, 257 (5th Cir. 1997), cert. denied, 522
U.S. 1047 (1998), held that fees for private process servers, in
the absence of something exceptional about the parties or the
nature of the case, are unnecessary and should be disallowed as
taxable costs under § 1920.
Moreover since then the Fifth Circuit
has pointed out that in Gaddis, while it observed the Ninth
Circuit’s interpretation of the statute, it did not adopt that
interpretation, and it reaffirmed its holding in Cypress-Fairbanks
that “absent exceptional circumstances, the costs of a private
process server are not recoverable under Section 1920.” Marmillion
v. American Intern. Ins. Co., 381 Fed. Appx. 421, 431 (5th Cir.
In accord, Baisden, 793 F. Supp. 2d at 974-75.
exceptional circumstances, the Court agrees with KGJS and disallows
the requested sum of $4,892.30 for private process service.
KGJS objects that the costs ENSCO seeks for transcripts of
depositions are higher than the prices paid by KGJS.
providing a copy of the invoices supporting the cost of each
transcript along with supplemental production of evidence, explains
the greater cost is due to the fact that ENSCO noticed the
deposition and was charged for the original transcript, while
copies sent to other counsel are always billed at a lower rate than
The Court finds this explanation to be rational and
As for KGJS’s other objections to the deposition transcripts,
ENSCO provides as Exhibit 1 to #196 a supplemental accounting,
which separates the transcripts into sub-groups (ENSCO witnesses,
KGJS witnesses, Sea Robin Witnesses, and one Stingray witness)
according to the claims and issues that each witness was used to
support, with a notation regarding its projected use at trial.
ENSCO’s witnesses are numbers in the list 1 through 12, all of
which were listed as trial witnesses on the pretrial order and were
prepared and ready to testify about the set-up of ENSCO’s rig on
location and the search for it after it was classified as missing,
so each was needed for the case and their costs are properly
KGJS’s witnesses, 13-34, were all identified as trial
witnesses and their depositions were used to prepare for trial,
although KGJS decided not to call some of them, and they were
necessary to prove KGJS’s damages and the drift pattern of the rig
after it left station.
Thus these costs are properly taxable.
Witnesses 35-50 relate to Sea Robin’s portion of the claim.
Robin settled just before trial, but its witnesses were necessary
for the issues remaining between KGJS and ENSCO because the path
that the rig followed after being knocked off its location and the
actual time of sinking were critical to determining where ENSCO
should have looked for the rig and whether ENSCO’s search for it
The Sea Robin witnesses, who
were to support the
position that the rig sank to the bottom of the sea floor during
the story, controverted the SATILLA’s assertion that the rig was
floating for days after the storm, and the witnesses were used to
identify the time that the pipelines were severed while the rig was
on the bottom and to identify the damage caused by the rig on the
sea floor as it moved toward its final wreck location. In addition
ENSCO’s experts need this information to prepare an appropriate
drift model and for ENSCO’s attorney to cross examine KGJS’s drift
experts. Thus they were used to prepare for trial and are properly
taxed against KGJS. The testimony of the sole Stingray expert (51)
was used to during trial preparation and introduced into evidence
to prove that the ENSCO 74 did not hit the Sea Robin pipeline,
which was moved by the storm’s forces.
The Court finds that the depositions at the time they were
taken were taxable because they were reasonably expected to be and
were necessarily used for the case preparation and their costs are
As for KGJS’s challenge to the copy costs as excessive,
ENSCO’s counsel, Lawrence R. DeMarcay, verified the accuracy of the
costs in his affidavit and ENSCO has supplemented the record with
copies of the copy service invoices. ENSCO represents that $22,177
of the copy costs relate to its share of the trial exhibit books
that were used during the trial; in comparison the other $49,000 in
copy costs was incurred over the five years of litigation of this
case (September 2, 2009 through September 30, 2014) and are
reasonable in light of the duration and complexity of the case.
ENSCO concedes it has no way to segregate copies made for claims by
each claimant as the copies related to its document productions
that were made to all parties.
The sum also includes costs of
duplication of the document productions made by each claimant to
circulate to ENSCO’s legal and expert teams.
Thus the copies were
necessary for the development of the case and are properly taxable
Although ENSCO maintains that it is entitled to recover
appropriate, ENSCO asks an award of 66.67% of the total amount in
costs because there were three parties remaining in this action and
KGJS should be responsible for ENSCO’s and KGJS’s proportionate
In its discretion the Court finds that ENSCO has made a good
case and that an award in full of the requested $95,527.23 for
copies is taxable as costs.
ENSCO maintains that its calculation of witness fees was not
in excess of the set per diem rates.
Title 28 U.S.C. § 1821 (“Per
diem and mileage generally; subsistence”) provides in relevant
(a)(1) Except as otherwise provided by law, a witness in
attendance at any court of the United Stats, or before a
United States Magistrate Judge, or before any person
authorized to take his deposition pursuant to any rule or
order of a court of the United States, shall be paid the
fees and allowances provided by this section.
(b) A witness shall be paid an attendance fee of $40 per
day for each day’s attendance. A witness shall also be
paid the attendance fee for the time necessarily occupied
in going to and returning from the place of attendance at
the beginning and end of such attendance or at any time
during such attendance.
(c)(1) A witness who travels by common carrier shall be
paid for the actual expenses of travel on the basis of
the means of transportation reasonably utilized and the
distance necessarily traveled to and from such witness’s
residence by the shortest practical route in going to and
returning from the place of attendance. Such a witness
shall utilize a common carrier at the most economical
rate reasonably available. A receipt or other evidence
of actual cost shall be furnished.
(2) A travel allowance equal to the mileage allowance
which the Administrator of General Services has
prescribed, pursuant to section 5704 of title 5, for
official travel of employees of the Federal Government
shall be paid to each witness who travels by privately
Computation of mileage under this
paragraph shall be made on the basis of a uniformed table
of distances adopted by the Administrator of General
Services. . . .
(d)(1) A subsistence allowance shall be paid to a witness
when an overnight stay is required at the place of
attendance because such place is so far removed from the
residence of such witness as to prohibit return thereto
from day to day.
(2) A subsistence allowance for a witness shall be paid
in an amount not to exceed the maximum per diem allowance
prescribed by the Administrator of General Services,
pursuant to section 5701(a) of title 5, for official
travel in the area of attendance by employees of the
The GSA states that the per diem meal and incidental expense rate
(http://www.gsa.gov/portal/category/100120), while the spreadsheet
attached to ENSCO’s Bill of Costs estimated a $25 per day rate of
substantially lower than the GSA set amount.
Thus in its updated
supplemental spreadsheet, attached as Exhibit 1 to #196, ENSCO
seeks $30,711.52 in costs for witness fees.
KGJS objects to the taxing of $531.54 in costs incurred by
witness Julie Slocum’s attendance at the trial as ENSCO’s corporate
ENSCO responds that she was also listed as a
witness in the pretrial order (#163 at p. 43) and was expected to
testify in ENSCO’s case in chief.
KGJS further challenges costs associated with third party
witnesses not called during the trial, included David Gaudin, David
Menzies, Steve Hopkins, and Bob Christ.
When these individuals
were served with trial subpoenas, they were ready to testify to the
location of the rig and where it was located before the storm, the
drilling history and soil conditions of that location, and the
rig’s set-up. Only after they were served with trial subpoenas did
KGJS stipulate that the rig was set up on location properly, making
their testimony unnecessary and they were released. Thus the costs
of compelling their attendance at trial should be recoverable.
SeaTrepid, which performed the ROV video of the wrecked rig, and
was listed as a witness for ENSCO in the pretrial order (#163 at p.
43), while his video was entered into evidence.
served to validate the drift model that generated the drift pattern
of the rig and how it related to ENSCO’s search for the rig.
was ready and available for trial.
The costs requested for his
attendance were for witness fee and mileage when he was served with
a trial subpoena, so the requested sum of $472.44 associated with
his attendance at trial is valid and taxable as costs.
A check for
the costs associated with the witness fee and mileage was attached
to the subpoena, and the costs were incurred before the parties
agreed his testimony would not be needed.
Although KGJS relies on Nissho-Iwai Co. v. Occidental Crude
Sales, Inc., 729 F.2d 1530 (5th Cir. 1984) to support its argument
that these witnesses’ costs should not be allowed, ENSCO claims
that KGJS misreads the case.
The Fifth Circuit panel in Nissho-
Iwai permitted taxing of costs for the attendance of witnesses that
called to testify, but did not have to because of extrinsic
Id. at 1553 (“Although courts do not ordinarily
allow fees for witnesses who have not testified at trial, a court
may award such a fee if the witness was ready to testify but
extrinsic circumstances rendered his testimony unnecessary.”).
this case the extrinsic circumstances were KGJS’s late decision to
stipulate to the seaworthiness of the rig and its proper set up.
In addition, the Court’s granting of ENSCO’s motion for a directed
verdict after KGJS finished its case-in-chief resolved the entire
case before ENSCO called any of the witnesses it intended to call
during its case in chief.15
The Court is in full agreement with ENSCO’s legal authority on
the taxing of these costs for witnesses. ENSCO’s request is
supported by counsel’s affidavit and by the updated GSA expense
rate for Harris County.
The case was won on a Judgment on Partial
Findings after the Court directed a verdict.
That result does not
alter the fact that Julie Slocum was in attendance at trial and
ready to testify as a witness had the case not been resolved when
Thus her costs for attendance are as taxable as are those
of other ENSCO witnesses present and ready to testify.
these reasons Court allows the full amount requested for witness
Accordingly the Court, in its discretion,
ORDERS KGJS to pay the following in costs to ENSCO:
(1) Undisputed $350.00 for fees for the Clerk;
This Court observes that a number of district courts in
the Fifth Circuit have relied on Nissho-Iwai for this point:
see, e.g., Mississippi Chemical Corp. v. Dresser-Rand Co., No.
5:97CV57BRN, 2000 WL 33725123, at *15 (S.D. Miss. Sept. 12,
2000)(“It is settled in this Circuit that witness fees are
taxable for the days that a witness did not testify, if the
witness was in necessary attendance at the
trial, ready to testify.”); Card v. State Farm Fire and Casualty
Co., 126 F.R.D. 658, 660-61 (N.D. Miss. 1989)(quoting NisshoIwai); Gros v. City of Grand Prairie, No. Civ. 3:96-CV-2897-D,
2001 WL 276899, at *3 (N.D. Tex. Mar. 19, 2001)(“[F]ees may be
awarded if the witness was ready to testify and extrinsic
circumstances rendered her testimony unnecessary.”).
necessarily obtained for use in the case;
(3) $71,518.28 for exemplification and costs of making
copies of materials necessarily obtained for use in this
(4) $30,711.52 for fees for witnesses, for a total sum of
SIGNED at Houston, Texas, this 16th day of February, 2017.
UNITED STATES DISTRICT JUDGE
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