State of Texas v. City Of Houston et al

Filing 85

OPINION AND ORDER as to 73 Bill of Costs.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IESHA GRANT,
Third-Party Plaintiff,
VS.
CITY OF HOUSTON, DIANA
BOCANEGRA, ANTONIO GARCIA, KYE
NAQUIN, DAVID RUSSELL, ROBERT
SIMPSON, AND CHASE CORMIER,
Third-Party Defendants.

§
§
§
§
§
§
§
§
§
§
§
§

January 31, 2017
David J. Bradley, Clerk

C.A. NO. H-11-3278

OPINION AND ORDER
Now that the Fifth Circuit has affirmed this Court’s summary
judgment in favor of the City of Houston and six Houston Police
Department Officers (Kye Naquin, Diana Bocanegra, Antonio Gracia,
David Russell, Robert Simpson and Chase Cromier)(collectively,
“Prevailing Defendants”), reinstated before the Court in the above
referenced Third-Party action, are prevailing-party Defendants’
bill of costs (instrument #73), Plaintiff Iesha Grant’s (Plaintiff
or “Grant’s”) objection (#74), and Defendants’ response (#77).
Standard of Review
Federal Rule of Civil Procedure 54(d)(1) states, “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.” Pacheco v. Mineta, 448 F.33d 783, 793 (5th Cir.
2006), cert denied, 549 U.S. 888 (2006).

Rule 54(d)(1) ”contains

a strong presumption that the prevailing party will be awarded

-1-

costs.”

Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985).

At the same time it gives the court discretion to deny costs.
Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729 F.2d 1539,
1551 (5th Cir. 1984).

“Notwithstanding [the venerable presumption

that prevailing parties are entitled to costs], the word “should”
makes clear that the decision whether to award costs ultimately
lies within the sound discretion of the district court.”

Max v.

Gen. Revenue Corp., 133 S. Ct. 1166, 1172 (2013).
Title 28 U.S.C. § 1920 identifies the types of expenses that
a federal court, in its discretion, may tax:
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 case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees 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 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.
A district court may only tax those costs listed in § 1920, but it
does have the discretion to deny an award for those in that list.
Crawford Fitting Co. v. J.T. Gibbons, 482 U.S. 437, 442-43 (1987);
Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1992),
cert. denied, 510 U.S. 1195 (1994); Gordon v. Cinergy Corp., Civ.
A. No. 4:05-cv-00451, 2007 WL 471130, at *1 (S.D. Tex. Feb. 9,
2007).
-2-

The party seeking to recover its costs bears the “burden of
justifying the necessity of obtaining the depositions and copies at
issue” as “obtained for use in the case” under § 1920(4).
v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991).

Fogelman

“A deposition is

necessarily obtained for use in the case ‘[i]f, at the time the
deposition was taken, a deposition could reasonably be expected to
be used for trial preparation, rather than merely for discovery.’”
Marmillon v. Am. Intern. Ins. Co., 381 Fed. Appx. 421, 429 (5th Cir.
2010), quoting Fogelman, 920 F.2d at 285 (“[A deposition copy
obtained for use during trial or for trial preparation rather than
for the mere convenience of counsel may be included in taxable
costs.”). The need to take the deposition or the cost of obtaining
a copy of a deposition is a finding of fact by the district court,
which is given “great latitude in this determination.”

Fogelman,

920 F.2d at 286.
Defendants’ Bill of Costs (#74)
Prevailing Defendants, with copies of supporting invoices,
have requested a total of $6,960.83 in costs, broken down as
follows:

$504.00 for service of summons and subpoena; $6,393.23

for printed or electronically recorded transcripts necessarily
obtained for use in the case; and $63.60 for exemplification and
costs of making copies.
Plaintiff’s Objection (#74)
Plaintiff claims that the application costs is improper,
including in imposing inequitable hardship on her.
-3-

She objects to

the $6,393.23 in deposition costs on the grounds that her own
deposition was “minimal” and that Defendants have not shown the
depositions obtained were necessary for Defendants’ case.

Grant

complains that Defendants could have controlled and absorbed their
costs rather than shifting excessive costs to her as punishment.
Grant claims that Defendants did not notice anyone except her,
while she noticed the majority of witnesses, had to purchase a copy
of all those depositions, and had available copies of depositions
for Defendants.

She further contends that none of the deposition

transcripts were introduced into evidence other than small portions
used

in

the

summary

judgment

unnecessary for the arguments.

proceedings,

but

these

were

Furthermore, although Defendants

are required to justify the taxation of the requests costs, Grant
objects that they have only presented alleged “bills.”
submits

that

most

of

the

depositions

were

used

to

Grant

secure

a

settlement with the State of Texas for the improper seizure of
$35,000 from her home.
Defendants’ Response (#77)
Defendants point out that the bill of costs identifies fifteen
depositions taken in this action.

Defendants noticed one, of

Grant, while Plaintiff noticed and took the rest, and all were
related to Grant’s allegations that her constitutional rights were
violated by the City of Houston and twelve police officers in the
seizure of $35,000 in her home, the search of her home, and the
shooting of her dog.

Grant chose to sue and to take depositions of
-4-

all twelve officer Defendants and of investigators from homicide
and the City’s expert for the shooting.

Defendants maintain that

they needed copies of the depositions to prepare for trial.

Each

of the twelve offices would have to know of the City’s policies and
procedures at the time of the incident in dispute.

As for her

claim that the depositions were used to secure a settlement,
Defendants

respond

that

the

Plaintiff

never

disclosed

that

discovery would be limited to that issue and did not release six of
the police officers until March 2014.

Trial was set for November

2014, but the Court granted summary judgment only two months
earlier.

Defendants could not wait for a ruling on their motion

for summary judgment before preparing for trial, for which all
copies were necessarily made. As for her claim that imposing costs
was punitive, Defendants point to the stipulation entered into by
Plaintiff and the State of Texas in March 2014:

For the State of

Texas to agree to dismiss the forfeiture part of this case, Grant
requested

and

presumably

received

from

the

State

the

seized

$35,582.00 plus interest.
Court’s Decision
The Court finds that, in addition to the warranted costs of
subpoenas and service, all the requested costs on Grant’s bill
should be awarded to prevailing Defendants because they were for
copying of for depositions that at the time they were taken could
reasonably be expected to be used for trial preparation and were
necessarily obtained for use in the case.
-5-

Grant’s unsupported

claim

that

imposition

of

costs

would

cause

her

hardship

is

unpersuasive. She did not proceed in forma pauperis (“IFP”)in this
case and was represented by counsel through summary judgment. Even
if she were indigent, title 28 U.S.C. § 1915(f)(1) expressly states
that when a party proceeds IFP “judgment may be rendered for costs
at the conclusion of the suit or action as in other cases.”

Calton

v. City of Garland, 170 Fed. Appx. 338, No. 05-10364. at *1 (5th
Cir.

Mar.

8,

2006)(per

curiam).

That

there

were

so

many

depositions taken was the inevitable result of Plaintiff’s choosing
to sue so many Defendants and to continue to prosecute them for
years.
Accordingly, the Court
ORDERS that prevailing Defendants are awarded $6,960.83 in
costs, to be paid by Grant, with post judgment to accumulate at the
rate of 0.53% per annum from this date until the costs are paid.
SIGNED at Houston, Texas, this

31st

day of

January , 2017.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

-6-