Havins v. FMC Technologies, Inc. d/b/a TechnipFMC
Filing
143
MEMORANDUM OPINION AND ORDER granting in part and denying in part 139 Notice of Taxation of Costs. (Signed by Judge George C Hanks, Jr) Parties notified.(bthomas, 4)
Case 4:19-cv-00070 Document 143 Filed on 05/22/23 in TXSD Page 1 of 6
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MICHAEL HAVINS,
Plaintiffs,
VS.
FMC TECHNOLOGIES, INC. d/b/a
TECHNIPFMC,
Defendant.
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May 22, 2023
Nathan Ochsner, Clerk
CIVIL ACTION NO. 4:19-CV-070
MEMORANDUM OPINION AND ORDER
Pending before the Court is a Notice of Taxation of Costs filed by Defendant FMC
Technologies, Inc. d/b/a TechnipFMC (“FMC”) (Dkt. 139). Having reviewed the motion,
response, reply, and applicable law, the Court finds FMC’s motion should be GRANTED
IN PART AND DENIED IN PART.
BACKGROUND
Plaintiff Michael Havins filed suit against FMC, his former employer, alleging
violations of the Age Discrimination in Employment Act and the Texas Commission on
Human Rights Act. (Dkt. 1). The case was tried before a jury, which found that age was
not the but-for cause of Havins’ termination, nor was age a motivating factor in FMC’s
decision to terminate Havins. (Dkt. 129). FMC then moved for reimbursement of its trial
costs. (Dkt. 139).
The arguments raised in FMC’s notice of taxation of costs, Havin’s response, and
FMC’s reply are considered below.
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Case 4:19-cv-00070 Document 143 Filed on 05/22/23 in TXSD Page 2 of 6
LEGAL STANDARD
Federal Rule of Civil Procedure 54(d) provides that “[u]nless a federal statute, these
rules, or a court order provides otherwise, costs—other than attorney's fees—should be
allowed to the prevailing party.” Rule 54 creates a presumption that costs should be
awarded to the prevailing party. District courts may award only those costs enumerated in
28 U.S.C. § 1920 “absent explicit statutory or contractual authorization to the contrary.”
Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 529 (5th Cir. 2001).
Section 1920 lists the following costs: “(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.” 28 U.S.C. § 1920(1)–(6).
“If the party being taxed has not specifically objected to a cost, the presumption is
that the costs being sought were necessarily incurred for use in the case and will be taxed.”
Baisden v. I'm Ready Productions, Inc., 793 F. Supp. 2d 970, 973 (S.D. Tex. 2011) (citation
omitted). “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.” Id. (citing
Fogleman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991)).
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Case 4:19-cv-00070 Document 143 Filed on 05/22/23 in TXSD Page 3 of 6
ANALYSIS
FMC’s initial notice catalogued $14,571.72 in costs that it sought to tax against
Havins. (Dkt. 139). Havins raised several objections in response and argued that the costs
should be reduced to no more than $5,996.65. (Dkt. 140). FMC then eliminated $2,951.53
from its request, bringing the total to $11,620.19. The Court finds that FMC is entitled to
most, but not all, of this revised total.
Havins sought to eliminate the rush transcript charges for four depositions. (Dkt.
140 at 2). While FMC agreed to eliminate three of these charges (Dkt. 141 at 8), FMC
maintained that the rush charge of $478.17 for Casey Pickard’s deposition was necessary
in light of Pickard’s health situation and the close temporal proximity of the deposition to
the trial (three weeks) (Dkt. 141 at 2-3). In so arguing, FMC inadvertently mixed up which
of Pickard’s two depositions incurred the rush charge in question. The charge was
associated with Pickard’s first deposition, which occurred on August 1, 2019—not the
second deposition, which occurred on July 20, 2022. (Dkt. 140-1). Thus, the Court agrees
with Havins that the rush transcript charge for Pickard’s first deposition should not be
taxed.
Havins also sought to eliminate the charge for Havins’ videotaped deposition on the
grounds that (1) Fifth Circuit case law does not allow for the taxing of fees for printed and
electronically recorded transcripts, and FMC seeks to tax the fees for both; and (2) Havins’
videotaped deposition was not necessary because Havins was going to be present
throughout his entire trial. (Dkt. 140 at 3-4). The Court agrees that FMC should not recover
the costs of both the written and electronically recorded transcripts of Havins’ deposition.
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Case 4:19-cv-00070 Document 143 Filed on 05/22/23 in TXSD Page 4 of 6
Section 1920 allows for the recovery of fees for “printed or electronically recorded
transcript necessarily obtained for use in the case.” 28 U.S.C. § 1920(2) (emphasis added).
Given that the statutory language does not presumptively allow for the recovery of fees for
both printed and electronically recorded transcripts, the requesting party must demonstrate
why both versions of the transcripts are necessary. See Baisden v. I'm Ready Prods., Inc.,
793 F. Supp. 2d 970, 976–77 (S.D. Tex. 2011) (while videotape deposition costs and
deposition transcripts are both recoverable costs, the requesting party bears the burden of
showing that the different versions of the deposition were reasonably obtained for use in
the case). The Court finds that FMC failed to meet this burden here. Thus, the fee for
Havins’ video deposition ($1,959.95) is nontaxable.
Havins also challenges certain “nontaxable charges” ($1,208.90 total) found on the
deposition invoices. (Dkt. 140 at 6-7). The Court finds that of these charges are properly
associated with the preparation of the depositions and are thus taxable under Section 1920.
Finally, the Havins asks the Court to exercise its discretion not to tax the costs
associated with Pickard’s second deposition. (Dkt. 140 at 7). The Court finds that Pickard’s
second deposition is properly taxable under Section 1920 and declines to eliminate it from
FMC’s recoverable costs.
Having addressed Havins’ objections and FMC’s arguments in support, the Court
finds that FMC is entitled to recover the following costs:
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Case 4:19-cv-00070 Document 143 Filed on 05/22/23 in TXSD Page 5 of 6
INVOICE
DATE
INVOICE
NUMBER
REVISED
AMOUNT
08/08/19
140079482
$666.40
08/27/19
530946
$1,808.90
08/29/19
531794
$0
01/13/20
140097477
$895.60
01/23/20
140097752
$769.50
01/24/20
140098846
$1,426.85
02/17/20
140101165
$997.55
02/18/20
140101359
$640.55
07/20/22
202770
$1,976.52
REVISED
TOTAL
$9,181.87
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DOCUMENT
DESCRIPTION
U.S. Legal Support
Electronic Copy of Deposition
of Casey B. Pickard Deposition
Transcript
Magna Legal Services
Original and 1 Certified Copy
of Transcript of Michael
Havins
Magna Legal Services
Video Deposition of Michael
Havins
U.S. Legal Support
Electronic Copy of Deposition
of Janet F. Lee
U.S. Legal Support
Electronic Copy of Deposition
of Victoria Jackman
U.S. Legal Support
Electronic Copy of Deposition
of Noreen Klingensmith
U.S. Legal Support
Electronic Copy of Deposition
of Robert Curtis White
(Volume 1)
U.S. Legal Support
Electronic Copy of
Deposition of Robert
White (Volume 2)
Carlisle Reporting
Original Deposition (with
video) of Casey Pickard
Case 4:19-cv-00070 Document 143 Filed on 05/22/23 in TXSD Page 6 of 6
CONCLUSION
FMC’s Notice of Taxation of Costs is GRANTED IN PART AND DENIED IN
PART. FMC is entitled to recover $9,181.87 in costs.
IT IS SO ORDERED.
SIGNED at Houston, Texas on May 22, 2023.
_______________________________
GEORGE C. HANKS, JR.
UNITED STATES DISTRICT JUDGE
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