Love v. Hajoca Corporation et al

Filing 96

MEMORANDUM AND ORDER Defendants are entitled to recover from Plaintiffs taxable costsin the amount of $3,887.66.(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DAN LOVE and JOHN STEWART,
Plaintiffs,
v.
HAJOCA CORPORATION, et al.,
Defendants.

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CIVIL ACTION NO. H-11-1192

MEMORANDUM AND ORDER
Defendants in this age discrimination case filed a Bill of Costs [Doc. # 88],
seeking $436.54 for costs associated with service of subpoenas and $3,887.66 for
transcript costs. Plaintiffs Dan Love and John Stewart filed Objections to the Bill of
Costs [Doc. # 89], and Defendants filed a Response [Doc. # 90] to Plaintiffs’
Objections. Having reviewed the record and applicable legal authorities, the Court
awards costs to Defendants in the amount of $3,887.66.
Rule 54(d) of the Federal Rules of Civil Procedure states that “costs other than
attorneys’ fees shall be allowed as of course to the prevailing party unless the court
otherwise directs.” FED. R. CIV. P. 54(d)(1). By statute, however, federal courts may
award only those costs itemized in 28 U.S.C. § 1920, absent explicit statutory or
contractual authorization to the contrary. See Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 444-45 (1987); Mota v. Univ. of Texas Houston Health Sci. Ctr.,

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261 F.3d 512, 529 (5th Cir. 2001). The Court should consider the necessity and
reasonableness of the costs requested. See Cypress-Fairbanks Indep. Sch. Dist. v.
Michael F., 118 F.3d 245, 257–58 (5th Cir. 1997). The Court has broad discretion in
determining the appropriateness of an award of costs under Rule 54(d)(1). See Breaux
v. City of Garland, 205 F.3d 150, 164 (5th Cir. 2000).
Plaintiffs object to Defendants’ request to recover $436.54 in costs for service
of subpoenas by private process servers.

Absent a showing of exceptional

circumstances, the cost incurred in connection with private process servers is not
taxable. See Cypress-Fairbanks, 118 F.3d at 257; Marmillion v. Am. Int’l Ins. Co.,
381 F. App’x 421, 431 (5th Cir. June 16, 2010); Baisden v. I’m Ready Prod., Inc., 793
F. Supp. 2d 970, 974 (S.D. Tex. 2011) (Lake, J.). Consequently, Plaintiffs’ objection
to this element of Defendants’ costs is sustained.
Plaintiffs object also to Defendants request for transcript costs. This objection
is overruled. The prevailing party is entitled to recover costs of original depositions
and copies if “necessarily obtained for use in the trial,” and it is not required that a
deposition be actually introduced into evidence to meet this requirement. Coats v.
Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993). “‘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.’” Id.

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(quoting Fogleman v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991)). Whether a
deposition “was necessarily obtained for use in the case” is a factual determination for
the district court. Id.; Soderstrum v. Town of Grand Isle, 925 F.2d 135, 141-42 (5th
Cir. 1991). The Court sees no evidence that the depositions for which Defendants
seek to recover costs were merely investigatory and thus non-taxable. See Perez v.
Pasadena Indep. Sch. Dist., 165 F.3d 368, 374 (5th Cir. 1999).

Indeed, the

depositions were noticed by Plaintiffs and used by the parties in their summary
judgment briefing. See Baisden, 793 F. Supp. 2d at 976 (taxing costs for depositions
of prevailing parties’ own witnesses because “the defendants had a reasonable
expectation that each of these depositions would be used for trial preparation”). The
Court finds that the deposition transcripts were obtained for use – and were actually
used – in this case. As a result, Defendants are entitled to recover their taxable costs
of $3,887.66 for transcript costs.
Based on the foregoing, it is hereby
ORDERED that Defendants are entitled to recover from Plaintiffs taxable costs
in the amount of $3,887.66.
SIGNED at Houston, Texas, this 13th day of November, 2013.

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