Rob Thomas v. John Skipper "Skip" Woods et al

Filing 66

MEMORANDUM OPINION AND ORDER sustaining 63 Defendant's Objection(s) to Plaintiff's Bill of Costs (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ROB THOMAS,

§
§
§
§

Plaintiff,
v.

§
§
§
§
§
§
§

JOHN SKIPPER "SKIP" WOODS,
BLIND SQUIRREL, LLC,
OUTLAW ENTERTAINMENT GROUP LLC,
and WARMONGER MEDIA, INC.,
Defendants.

CIVIL ACTION NO. H-14-2487

§

MEMORANDUM OPINION AND ORDER

On April 2,
motion

to

Defendant

2015,

enforce
John

entities. 1

a

the court granted Plaintiff Rob Thomas's
settlement

Skipper

"Skip"

agreement
Woods

entered
several

and

In accordance with that opinion,

into

with

affiliated

the court entered a

final judgment pursuant to the terms of the settlement agreement,
and the court taxed costs against the Defendants.2

On April 14,

2015, Plaintiff filed a Bill of Costs (Docket Entry No. 62) in the
amount

of

$9,645.97.

John

Skipper

"Skip"

Woods

Defendant's Objection to Plaintiff's Bill of Costs
Obj ections/)

(Docket Entry No.

63),

has

filed

("Defendant's

and Plaintiff has filed his

Opposition to Defendant's Objection to Plaintiff's Bill of Costs

lSee Memorandum Opinion and Order, Docket Entry No. 59.
2See Final Judgment, Docket Entry No. 60.

(Docket

Entry

No.

65).

For

the

reasons

explained

below,

Defendant's Objections will be sustained, and Plaintiff's Bill of
Costs will be denied.
I.

Standard of Review

Federal Rule of Civil Procedure 54 (d) (1) states that" [u] nless
a

federal

statute,

these

rules,

or

a

court

order

provides

otherwise, costs - other than attorneys' fees - should be allowed
to the prevailing party."
of awarding costs.

There is a "strong presumption" in favor

Energy Mgmt. Corp. v. City of Shreveport, 467

F.3d 471, 483 (5th Cir. 2006).

"Notwithstanding this presumption,

the word 'should' makes clear that the decision whether to award
costs ultimately lies within the sound
court."

d~scretion

of the district

Marx v. Gen. Revenue Corp., 133 S. Ct. 1166, 1172 (2013).

Nevertheless, "if the court does not award costs to the prevailing
party,

[the Fifth Circuit] require[s]

its reasons."

the district court to state

Energy Mgmt. Corp., 467 F.3d at 483.

The court may only tax as "costs" those expenses listed in 28
U.S.C.

§

1920:

(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.
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Allowable costs are limited to these categories, and expenses that
are not authorized by statute or contract must be borne by the
party incurring them.

Crawford Fitting Co. v. J.T. Gibbons, Inc.,

107 S. Ct. 2494, 2497-98 (1987).
If the party being taxed has not specifically objected to a
cost,

the

presumption

is

that

sought

were

necessarily incurred for use in the case and will be taxed.

See

Embotelladora Agral Regiomontana,

the

costs

being

S.A. de C.V. v. Sharp Capital,

Inc., 952 F. Supp. 415, 417 (N.D. Tex. 1997)

("[I]n the absence of

a specific objection, deposition costs will be taxed as having been
necessarily obtained for use in the case.").

However,

once an

objection has been raised, the party seeking costs 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.
Jerry v. Fluor Corp., No. H-10-1505, 2012 WL 4664423, at *2 (S.D.
Tex. Oct. 2, 2012)

(citing Fogleman v. ARAMCO,

920 F.2d 278, 286

(5th Cir. 1991)).
II.

Analysis

Plaintiff filed a Bill of Costs seeking $9,645.97 in total
costs including
summons

and

(1)

fees of the clerk,

subpoena,

(3)

fees

for

(2)

fees for service of

witnesses,

(4)

fees

for

exemplification and copies necessarily obtained for use in the
case,

and

(5)

other costs,

under which category Plaintiff has
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listed $7,609.30 in "deposition costs," broken out only by deponent
and

either

Plaintiff

"Court
did

not

Reporter
attach

Services"

any

or

invoices,

supporting documentation to his

Bill

of

"Video

Services."3

receipts,
Costs.

or

other

Defendant has

objected to all of Plaintiff's claims for costs.
Defendant objects that Plaintiff is not entitled to any costs
incurred prior to settlement of the case because such claims were
mutually released and because those costs were not necessarily
incurred in enforcing the settlement agreement. 4

Defendant argues

that, with the exception of deposition costs, it is impossible to
determine "when [costs] were incurred or whence they came."

While

the court is not persuaded that Plaintiff's costs should be limited
to those incurred after settlement, Plaintiff still has the burden
of showing that those costs fall within the scope of

§

1920 and

were necessarily incurred.
Defendant

also

obj ects

that

Plaintiff

cannot

recover

his

expenses related to video depositions.

However, Defendant relies

on cases decided in the late 1990s. 5

In 2008 Congress amended

§

1920 to include fees for "electronically recorded transcripts."

"Accordingly,

the

recoverable under

cost
§

for

1920(2)."

videotaped
Baisden v.

depositions

is

now

I'm Ready Productions,

3See Bill of Costs, Docket Entry No. 62, pp. 1-3.
4See Defendant's Objections, Docket Entry No. 63, pp. 2-3.
5S ee id.

at 4 n.7.
-4-

Inc.,

793

F.

Supp.

2d

970,

976

(S.D.

Tex.

2011)

(Lake,

J.).

Furthermore, a prevailing party may recover both transcription and
videotaping costs for the same deposition.

rd.

Nevertheless, the

party must show that both were necessarily obtained for use in the
case.

rd.
This district's Bill of Costs form directs filers:

"Attach to

your bill an itemization and documentation for requested costs in
all categories."6

Plaintiff has not provided any documentation in

support of his Bill of Costs.
Plaintiff

has

not

Apart from $47.95 in witness fees,

itemized any of

his

costs

with a

level

of

specificity that would allow the court to determine what amounts
are recoverable under

§

1920. 7 Plaintiff's response to Defendant's

Objections is perfunctory and does not shed additional light on the

6S ee Bill of Costs, Docket Entry No. 62, p. 1.
See also
Denner v. Texas Dept. of Criminal Justice, No. CIV.A.SA05CA184XR,
2007 WL 294191, at *7 & n.4 (W.D. Tex. Jan. 29, 2007) (quoting
identical admonishment in Bill of Costs form and denying costs not
sufficiently itemized or documented) i Welch v. u. S. Air Force,
No. CIV.A. 5:00-CV-392-C, 2003 WL 21251063, at *2 (N.D. Tex.
May 27, 2003) (same).
7For example, Plaintiff seeks $1,453.20 for service of summons
and subpoena, but he does not itemize or further justify this cost.
In this circuit, "absent exceptional circumstances, the costs of a
private process server are not recoverable under Section 1920."
Marmillion v. American International Insurance Co., 381 F. App'x
421, 431 (5th Cir. 2010).
Plaintiff has not provided sufficient
information for the court to determine whether any of the requested
fees for service are recoverable. The court might be inclined to
grant Plaintiff's request for $47.95 in witness fees, since the
allowable amount is determined by statute, but Plaintiff has
neither supported this request with documentation nor responded
with any specificity to Defendant's Objections.
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allowability of Plaintiff's costs.

The court would be inclined to

award Plaintiff those costs that are reflected in the record, but
there

are

none. B

While

the

result

may

seem harsh the

papers

presented by plaintiff do not support the award of any costs.
III.

Conclusion and Order

Plaintiff has not met his burden to show that his costs are
recoverable.

Defendant's Objection[s] to Plaintiff's Bill of Costs

(Docket Entry No. 63) are therefore SUSTAINED.
SIGNED at Houston, Texas, on this the 7th day of May, 2015.

7.SIM

LAKE

UNITED STATES DISTRICT JUDGE

BThe only fee listed on the docket was paid by Defendants upon
removal from state court.
See Docket Entry No.1.
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