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)
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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