Clark et al v. Williamson County

Filing 81

MEMORANDUM OPINION AND ORDER, SUSTAINING IN PART AND OVERRULING IN PART 78 Response and Objections to 75 Motion to Remove Stay, 66 Bill of Costs filed by David M Compton, David Claxton, Heather Clark; GRANTING IN PART AND DENYING IN PART 75 Bill of Costs Amended, Motion to Remove Stay filed by Williamson County. Signed by Judge Lee Yeakel. (jk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

20130CT -7

id

HEATHER CLARK, DAVID CLAXTON,
AND DAVID M. COMPTON,
PLAINTIFFS,

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f

V

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CAUSE NO. A-1O-CV-869-LY

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V.

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WILLIAMSON COUNTY,
DEFENDANT.

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MEMORANDUM OPINION AND ORDER ON DEFENDANT'S REOUEST TO
REMOVE STAY AND AMENDMENT FOR ENTRY OF BILL OF COSTS
Before the Court are Defendant's Request to Remove Stay and Amendment for Entry of Bill

of Costs filed August 30, 2013 (Doe. #75) and Plaintiffs' Objections and Response to Defendant's
Amended Bill of Costs filed September 3, 2013 (Doe. #78).
Background

On May 17, 2012, the court rendered an order granting Defendant's motion for summary

judgment, denying Plaintiffs' cross motions for partial summary judgment, and dismissing all of

Plaintiffs' claims against Defendant (Doe. #61). On May 29, 2012, the court rendered an Amended
Final Judgment dismissing all claims asserted by Plaintiffs on behalf of themselves and others
similarly situated and awarding all costs to Defendant (Doe. #65). Defendant filed a Bill of Costs

on May 30, 2012 (Doe. #66). Plaintiffs subsequently appealed the judgment, and on June 11,
2012, the court granted Plaintiffs' unopposed stay of order awarding costs pending resolution on
appeal (Doe. #70). On August 19, 2013, the judgment of this court was affirmed by the United

States Court of Appeals for the Fifth Circuit.

PM 3:50
it

T.XAS

Defendant requests the court to lift the stay and consider its bill of costs seeking $4,350.57.
Plaintiffs have objected to the motion. After considering same, IT IS ORDERED that Defendant's

Request to Remove Stay filed August 30, 2013 (Doc. #75) is GRANTED, the stay imposed by this

court's order of June 11, 2012 (Doc. #70) is LIFTED, and the court will consider Plaintiffs'
objections to Defendant's amended Bill of Costs.

Amount of costs
A district court generally has wide discretion in awarding costs; however, this discretion is

not unfettered. See Crawford Fitting Co.

v.

IT Gibbons, Inc., 482 U.S. 437, 441-42 (1987).

The

Court's discretion in taxing costs against an unsuccessful litigant is limited to the following
recoverable costs:
(1)
(2)

Fees and disbursements for printing and witnesses;

(4)

Fees for exemplification and copies of papers necessarily
obtained for use in the case;

(5)

Docket fees under section 1923 of this title; and

(6)

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Fees of the court reporter for all or any part of the
stenographic transcript necessarily obtained for use in the
case;

(3)

28 U.S.C.

Fees of the clerk and marshal;

Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.

1920. Although a district court may decline to award costs listed in the statute, it may

not award costs omitted from the statute. See Crawford, 482 U.S. at 441-42; Coats

Drilling Corp.,

5

F.3d 877, 891 (5th Cir. 1993).

2

v.

Penrod

Moreover, "[i]tems proposed by winning parties as costs should always be given careful
scrutiny." Farmer

v.

ArabianAm. Oil Co., 379 U.S. 227, 235 (1964) (quoted in Louisiana Power

& Light Co. v. Kelistrom, 50 F.3d 319, 335 (5th Cir. 1995)). The party seeking costs bears the

burden of supporting its request with evidence documenting the costs incurred and proof, when
applicable, that a certain item was necessarily obtained for use in the case. See Fogleman

v.

ARAMCO, 920 F.2d 278, 285-86 (5th Cir. 1991); Casarez v. Val Verde County, 27 F. Supp. 2d 749,
751 (W.D. Tex. 1998). This is a factual determination to be made by the district court. See

Fogleman, 920 F.2d at 285-86. Only when a clear abuse of discretion is shown can an award of
costs be overturned. See United TeacherAssoc. Ins. Co.

v.

Union Labor Lfe Ins., 414 F.3d 558, 574

(5th Cir. 2005); Coats, 5 F.3d at 891; In re NissanAntitrustLitig., 577 F.2d 910, 918 (5th Cir. 1978).

Defendant's amended Bill of Costs, includes: (1) $3,705.45 for "fees for printed or
electronically recorded transcripts necessarily obtained for use in the case;" and (2) $645.12 for "fees
for exemplification and the costs of making copies of any materials where the copies are necessarily

obtained for use in the case;" totaling $4,350.57.

Transcripts
Defendant seeks $3,705.45 in "fees for printed or electronically recorded transcripts
necessarily obtained for use in the case." Specifically, Defendants seek:
$769.65 for deposition transcript of Heather Clark,

$1,172 for deposition transcript of David Claxton,
$801.55 for the deposition transcript of David Compton,
$279.75 for the deposition transcript of Kenny Schnell,
$215.30 for the deposition transcript of John Sneed,

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$467.20 for court reporter's transcript and transcript fee for appeal.

Plaintiffs first object to Defendant's request for transcript costs and fees for appeal totaling
$467.20, noting that the Fifth Circuit's Judgment ordered that each party bear its own costs on
appeal. Therefore, the court will sustain Plaintiffs' objection and disallow $467.20 for transcript

costs and fees for appeal.
Plaintiffs further object to the total costs associated with deposition fees requested by
Defendant, arguing that the total erroneously includes $363.85 in costs for expedited delivery of the
depositions, $210 for e-transcripts, and $61.05 in tabs for the deposition. To recover expedited
delivery costs, the Fifth Circuit requires a showing of either prior court approval or necessity.

Fogleman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991). Defendants has made neither showing.
Therefore, the court will sustain Plaintiffs' objection and disallow $363.85 in costs for expedited

delivery of the depositions.
In addition, incidental costs associated with depositions are not recoverable as costs. See 28

U.S.C.

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1920; Maurice Mitchell Innovations, L.P.

v.

Intel Corp., 491 F. Supp. 2d 684, 687 (E.D.

Tex. 2007). Therefore, the court will sustain Plaintiffs' objection and disallow $210 for c-transcripts

and $61.05 in tabs for the depositions. Accordingly, the court will allow a total of $2,603.35 in costs
for transcripts.

III.

Conclusion

The court offers the following summary of the taxable costs allowed.

Defendant's Amended Bill of Costs
Amount Sought

Total

$645.12

$4,350.57

Fees for copies

$2,603.35

$645.12

Fees for court reporter
deposition transcripts

Amount Allowed

$3,705.45

Costs

$3,248.47

IT IS ORDERED that Plaintiffs' Objections and Response and Objections to Defendant's
Amended Bill of Costs filed September 3, 2013 (Doc. #78) are SUSTAINED IN PART AND

OVERRULED IN PART as set forth herein.

IT IS FURTHER ORDERED that Defendant's Amendment for Entry ofBill of Costs filed
August 30, 2013 (Doc. #75) is GRANTED only to the extent set forth herein. In all other respects,
it is DENIED.

SIGNED this

day of

ITED STAT