TSquare Apts LLC v. AMLI/BPMT Towne Square Partnership et al

Filing 106

MEMORANDUM OPINION AND ORDER over-ruling 100 Objections, to AMLI Defendants to pay $12,784.62 to Tsquare Apts, LLC. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

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United States District Court Southern District of Texas ENTERED May 30, 2017 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION TSQUARE APTS LLC, David J. Bradley, Clerk § § Plaintiff, § § § § § § § § § § § § § § § § v. AMLI/BPMT TOWNE SQUARE PARTNERSHIP; AMLI RESIDENTIAL PROPERTIES, L.P.; AMLI RESIDENTIAL PARTNERS LLC; AMLI MANAGEMENT COMPANY; and PENSIOENFONDS METAAL EN TECHNIEK (PMT) f/k/a STICHTING BEDRIJFSPENSIOENFONDS VOOR DE METAAL EN TECHNISCHE BEDRIJFSTAKKEN (BPMT), Defendants. CIVIL ACTION NO. H-16-0873 MEMORANDUM OPINION AND ORDER Pending before the court are Plaintiff's Objections to AMLI Defendants' Bill of Costs ("Plaintiff's Objections") (Docket Entry No. 100) and AMLI Defendants' Response in Opposition to Plaintiff's Objections No. to Bill 105). of Costs ( "AMLI' s Response") (Docket Plaintiff's objections will be overruled, Entry and costs taxed against Plaintiff, for the reasons stated below. I. Procedural Background Plaintiff TSquare Apts LLC ("TSquare") filed this diversity action to recover alleged damages arising out of its purchase of a multi-family residential apartment complex. After extensive jurisdictional discovery, the court concluded that TSquare failed to meet its burden to show that the parties were completely diverse and that the court therefore lacked subject-matter jurisdiction. 1 The suit was dismissed without prejudice and costs were taxed against TSquare in a Final Judgment entered on February 10, 2017. 2 AMLI/BPMT Properties, Towne L.P. Square AMLI I AMLI Partnership, Residential Partners, Residential LLC, AMLI Management Company (collectively, "AMLI Defendants") Bill of Costs totaling $15,865.20. 3 to which filed a TSquare filed its objections, AMLI Defendants have responded. II. A. and Analysis Applicable Law As stated in authorized by 28 Section 1919 the court's U.S. C. states § that earlier 1919 to tax "[w]henever dismissed in any district court . opinion, costs any the in action this or court is action. suit is , such court may order the payment of just costs" (emphasis added) . "Just costs" are not defined in the statute. After considering the parties' arguments and determining from the totality of circumstances that an award of costs is warranted, the court looks to 28 U.S. C. § 1920 for guidance in determining the actual amount of "just costs" to award. 1 Memorandum Opinion and Order, Docket Entry No. 97. 2 Final Judgment, Docket Entry No. 98. 3 Bill of Costs, Docket Entry No. 99. -2- See, e.g., Otay Land Co. v. United Enterprises Ltd., 672 F.3d 1152, 1160 (9th Cir. 2012) ; 139 F.3d 1336, 1339 Callicrate v. (lOth Cir. Farmland Industries, 1998); U.S. ex rel. Inc., DeKort v. Integrated Coast Guard Systems, LLC, 2013 WL 1890283, at *3 (N.D. Tex. Mar. 27, 2013). among other costs: printed and obtained for Section 1920 allows for the recovery of, (1) fees of the clerk and marshal; (2) fees for electronically use in the recorded case; ( 3) transcripts fees necessarily and disbursements for printing and witnesses; and (4) costs of making copies necessarily obtained for use in the case. § 1920 is not, however, The enumeration of cost items in a substitute for determining whether an award of costs is "just" under § Otay, 1919. 672 F.3d at 1160. The determination of whether taxing a cost is "just" lies within the discretion of the district court. B. Id. Application TSquare objected to the following portions of AMLI's Bill of Costs: (1) fees for service of summons and subpoena, fees for $3,966.00 "rush" service of process {2) transcripts transcripts, DVDs fees of including video multiple depositions, depositions taken for discovery purposes including ($4, 679.80 total); versions finance of rough charges, and ($3,057.27 total); and {3) costs incurred by AMLI to produce or print discovery documents, -3- for "electronic data management costs," and for a "trial board" ($8, 128.13 total) . 4 TSquare argues that "fees for service of summons and subpoena" are not recoverable because they are not enumerated in § 1920. 5 AMLI Defendants respond that courts have awarded private process fees as analogous to "fees of the clerk and marshal." 6 servers' The Fifth Circuit has, however, limited such awards to "exceptional circumstances." Co., 381 Fed. Marmillion v. App'x 421, American International Insurance 431 (5th Cir. 2010) (citing Cypress Fairbanks Independent School District v. Michael, 118 F.3d 245, 257 (5th Cir. 2010)). circumstances' served, courts have include an inability to difficulties in serving process, KBR service." Apr. "Some 29, 2011) v. Chevedden, (citing 2 0 11 cases) . WL AMLI found that locate 'exceptional the party to be and a party's refusing *1 (S . D. Tex . Defendants argue that 16 9 6 2 57 , TSquare's unwillingness to accept service on behalf of its memberowners and "gamesmanship during discovery" warrant a finding of exceptional circumstances. 7 The court disagrees. of exceptional circumstances, recover the amount that In the absence courts have held that parties may they would have incurred had 4 Plaintiff's Objections, Docket Entry No. 100, pp. 6-7. 5 Id. at 6. 6 AMLI's Response, Docket Entry No. 105, p. 4. 7 Id. at 5-6. -4- the U.S. Marshals Productions, effected Inc., (citing cases) . 793 service. F. Supp. See Baisden 2d 970, I'm Ready (S.D. 975 v. Tex. 2011) AMLI Defendants calculate that the minimum costs to have the U.S. Marshals effect service in person in this case would have totaled $1885. 00. 8 TSquare has not replied to AMLI Defendants' alternative proposal, but the court finds that total to constitute a just award. TSquare's objection will therefore be overruled. TSquare objects to AMLI Defendants' transcripts fees relating to two depositions, arguing that AMLI Defendants have not demonstrated that the depositions were taken for the purposes of trial or used jurisdiction. 9 in resolving the issue AMLI Defendants respond that of § subject matter 1920 permits costs for "[f]ees for printed and electronically recorded transcripts necessarily obtained for use in the case." 28 u.s.c. § 1920. AMLI Defendants cite the following persuasive reasoning from the Tenth Circuit: We are aware that the realities of litigation occasionally dispense with the need and much of the discovery already taken by the parties, when, for instance, a dispositive motion is granted by the trial court on purely jurisdictional grounds or on grounds other than the merits. At the time that the parties engage in discovery, however, they may not know whether such a motion will be granted or whether they will be 8 Id. at 6-7 (calculated by multiplying twenty-nine subpoenas by $65 per hour or portion thereof for personal service by the U.S. Marshals Service as set out in 28 C.F.R. § 0.114). 9 Plaintiff's Objections, Docket Entry No. 100, p. 6. -5- forced to proceed to trial. Hence, caution and proper advocacy may make it incumbent on counsel to prepare for all contingencies which may arise during the course of litigation which include the possibility of trial. It would therefore be inequitable to essentially penalize a party who happens to prevail on a dispositive motion by not awarding costs associated with that portion of discovery which had no bearing on the dispositive motion, but which appeared otherwise necessary at the time it was taken for proper preparation of the case. Callicarate, 13 9 F. 3d at 134 0. The court is persuaded that AMLI Defendants reasonably believed that the depositions at issue were necessarily obtained for use in this case at the time the costs were transcripts incurred. fees TSquare's objection and other deposition costs to will recovery of therefore be overruled. TSquare objects to what it alleges are impermissible legal costs, including the printing of discovery documents, board," and "electronic data management costs. " 10 a "trial AMLI Defendants concede that the "trial board" was included in the Bill of Costs in error, so the amount of $285.78 will be subtracted from the total of $8,128.13 for a new total of $7,842.35. 11 TSquare's objection to the inclusion of the "trial board" is therefore moot. Having reviewed the remaining objectionable invoices, 12 the court concludes that they reflect costs associated with the reproduction 10 Id. at 7. 11 AMLI's Response, Docket Entry No. 105, pp. 9-10. 12 of Bill of Costs, Docket Entry No. 99, pp. 39-48, 50-52. -6- I documents as countenanced by language the "[f]ees exemplification and the costs of making copies" in impermissible remaining "electronic objection to data AMLI for Defendants' 1920 and not costs." management § TSquare's printing costs will therefore be overruled. III. Conclusion and Order For the reasons stated above, Bill of Costs as modified the court concludes that the reflects AMLI Defendants are entitled. the just costs to To the extent that any of the costs taxed against TSquare are beyond the scope of its discretion, finds them to be just. § 1920, the court, in Plaintiff's Objections to AMLI Defendants' Bill of Costs ("Plaintiff's Objections") Entry No. 100) are therefore which AMLI OVERRULED. Defendants entitled to recover costs in the following amounts: service of summons and subpoena- $1,885.00; (Docket (1) fees for (2) fees for printed or electronically recorded transcripts - $3,057.27; and (3) and disbursements for printing- $7,842.35. of costs total $12,784.62. are fees These three categories TSquare is ORDERED to pay this amount to AMLI Defendants. SIGNED at Houston, Texas, on this the 30th day of May, 2017. SIM LAKE UNITED STATES DISTRICT JUDGE -7-

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