Mercer et al v. Patterson-UTI Drilling Company, LLC

Filing 92

MEMORANDUM AND ORDER: Plaintiff's objection to the bill of costs are sustained in part and overruled in part. (Signed by Judge Keith P Ellison) Parties notified.(gclair, 4)

United States District Court
Southern District of Texas

ENTERED
October 21, 2016

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

David J. Bradley, Clerk

KENNETH W. MERCER, et al.,
Plaintiffs,

CIVIL ACTION NO. 4:15-CV-346

v.

(Consolidated with 4:15-cv-1443)

PATTERSON-UTI DRILLING CO., LLC,

Honorable Keith P. Ellison

Defendant.
MEMORANDUM AND ORDER
Before the Court is a bill of costs submitted by Defendant. Having reviewed the bill of
costs, Plaintiffs' objections, related documents in the record, and the applicable law, the Court
holds that Plaintiffs' objections are SUSTAINED in part and OVERRULED in part.
Plaintiffs filed suit against Defendant, their former employer, alleging that Defendant
failed to provide them with the 60-day written notice of mass layoff required under the Worker
Adjustment and Retraining Notification Act of 1988, 29 U.S.C. §§ 2101 et seq. (the "WARN
Act").

Defendant moved for summary judgment on Plaintiffs' claims.

The Court granted

Defendant's motion at a hearing on August 10, 2016, and entered final judgment in Defendant's
favor later that day. 1 (Dkt. 81, 82.) As the "prevailing party" under Fed. R. Civ. P. 54(d),
Defendant filed a bill of costs seeking reimbursement "for printed or electronically recorded
transcripts necessarily obtained for use in the case." (See Dkt. 83); see also 28 U.S.C. § 1920
(outlining taxable costs). Plaintiffs timely filed an objection. (See Dkt. 85.)
Plaintiffs first contend that Defendant is not entitled to recover any costs under Rule
54(d). In support of this argument, they cite only to a 26-year-old case from the District of
1

Plaintiffs' appeal of this ruling is pending in the Fifth Circuit.
1

Minnesota. A review of the case, however, reveals that the prevailing party had moved for
attorneys' fees under Fed. R. Civ. P. 1l and two unrelated statutes, not for costs under Rule
54(d). See Solberg v. Inline Corp., 740 F. Supp. 680, 687 (D. Minn. 1990) (addressing motions
for attorneys' fees under Fed. R. Civ. P. 11, the prevailing party provision of ERISA (29 U.S.C.
§ 1132(g)(l)), and the prevailing party provision ofthe WARN Act (29 U.S.C. § 2104(a)(6)),

none of which are at issue here). In fact, the only on-point case cited in Plaintiffs' brief cuts
against them. In Meadows v. Latshaw Drilling Co., LLC, 2016 WL 3057657 (N.D. Tex. 2016),
the court assessed costs under circumstances nearly identical to those at issue here. Given the
dearth of precedent in favor of Plaintiffs' position, the Court cannot adopt it, particularly in the
face of Rule 54's "strong presumption" in favor of awarding costs to the prevailing party. See
Fed. R. Civ. P. 54(d) (costs "should be allowed to the prevailing party") (emphasis added);
Cheatham v. Allstate Ins. Co., 465 F.3d 578, 586 (5th Cir. 2006) ("There is a strong presumption

under Rule 54(d)(1) that the prevailing party will be awarded costs.") Plaintiffs' objection on
these grounds is overruled.
Plaintiffs' second argument-that some of the costs were incidental to taking depositions
and are not recoverable as a result-hits the mark.

As courts in this Circuit have long

recognized, "'Additional charges incurred merely for the convenience of one party's counsel
should not be taxed to the other."' Evert Fresh Corp. v. Pactiv Corp., 2011 WL 2672353, at *2
(S.D. Tex. July 7, 2011) (quoting Fogleman v. ARAMCO (Arabian American Oil Co.), 920 F.2d
278, 286 (5th Cir. 1991)). "[I]t is the prevailing party's burden to establish that the costs sought
are recoverable under § 1920." Gaspari v. FMC Techs., Inc., No. CV H-13-2353, 2016 WL
2659593, at *2 (S.D. Tex. May 5, 2016) (citing Baisden v. I'm Ready Prods., Inc., 793 F. Supp.
2d 970, 973 (S.D. Tex. 2011)), adopted 2016 WL 1070859 (S.D. Tex., Mar. 15, 2016).

2

Defendant fails to identify any precedent within the Fifth Circuit finding that an etranscript is "necessarily obtained" where, as here, the party has already procured a printed copy
of the deposition transcript and exhibits.

To the contrary, Defendant's apparent reason for

obtaining the e-transcript strongly suggests that they were obtained out of convenience rather
than necessity. (See Dkt. 86 at 5 (e-transcript allows the "attorney to search the text of [the]
documents with ease").) Plaintiffs' objection to Defendant's request for reimbursement of theetranscript and exhibit scanning fees is therefore sustained.
The Fifth Circuit has additionally held that "incidental costs like shipping, binding, and
tabbing are generally not taxable, as these costs are not listed in § 1920." US. ex rei. Long v.

GSDM/dea City, L.L.C., 807 F.3d 125, 133 (5th Cir. 2015). Accordingly, the Court sustains
Plaintiffs' objection as it relates to Defendant's recovery of the following deposition-related fees:
(1) administrative fee; (2) exhibit tabs fee; (3) obtaining signature (Read & Sign Fee); (4)

delivery fee; (5) binding fee; (6) rough draft fee; 2 (7) color copy fee; and (8) shipping and
handling fees.
More generally, the Court regrets that modem litigation has become so expensive for all
parties.

That is a problem, however, which must be addressed legislatively rather than in

individual cases.
In conclusion, Defendant is entitled to recover $8,019.53. This represents the full amount
requested by Defendant, less the $456.70 that is attributable to the costs to which Plaintiffs
correctly objected.

IT IS SO ORDERED.
2

This is tantamount to an expedited delivery charge, which generally is not a taxable cost.
United States ex rei. King v. Solvay S.A., 2016 WL 3523873, at *3 (S.D. Tex. June 28, 2016)
("Incidental costs associated with depositions, such as the cost of expedited delivery charges ...
are generally not recoverable.")
3

Signed this 20th day of October 2016.

~'i?~
Hon. Keith P. Ellison
United States District Judge

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