Eubank v. Lockhart Independent School District
ORDER GRANTING 86 Motion for Costs; DISMISSING AS MOOT 87 Motion to Enforce Discovery Sanctions. Signed by Judge Robert Pitman. (ml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
LOCKHART INDEPENDENT SCHOOL
Before the Court is Defendant Lockhart Independent School District’s Motion to Alter,
Amend, or Modify the Judgment and Motion for Costs. (Dkt. 92). 1 Also pending before the Court
are Plaintiff’s objections to the Magistrate Court’s order awarding discovery sanctions against her
attorney. (Dkt. 97). Having reviewed the parties’ submissions, the relevant law, and the case record,
the Court issues the following order.
Plaintiff Magdalena Eubank was formerly an employee of Defendant Lockhart Independent
School District. After the termination of her employment, she brought claims against Defendant for
failure to accommodate, discrimination, and retaliation under the Americans with Disabilities Act
and Texas Commission on Human Rights Act, as well as a claim of First Amendment retaliation
under 42 U.S.C. § 1983. The court rendered summary judgment in favor of Defendant on each claim
on January 17, 2017.
Defendant filed its motion under Rule 59 in response to language in the Court’s final judgment stating that the parties
would bear their own costs unless the Court ordered otherwise. The Court vacated its entry of final judgment on
February 2, 2017, so the Court will analyze Plaintiff’s motion only under Rule 54.
On January 25, 2017, the Magistrate Court issued an order granting a motion for sanctions
that Defendant had filed in relation to a discovery dispute. (Dkt. 84). The Magistrate Court had
found Plaintiff’s objections to Defendant’s discovery requests to be baseless and imposed a sanction
against Plaintiff’s attorney in the amount of $17,995.50. 2 On February 1, 2017, Defendant filed the
current motion for costs along with a motion to enforce the sanctions against Plaintiff. (Dkts. 86,
87). Plaintiff objected to the sanctions order on February 8, 2017.
Defendant, the prevailing party in this case, seeks an award of costs in the amount of
$8,316.58. Plaintiff opposes this award, at least in part, on the ground that Defendant includes costs
that are unrecoverable under Rule 54 and 28 U.S.C. § 1920. Defendant clarifies in its reply that it is
entitled to costs broader than those allowed under § 1920 pursuant to the ADA’s fee-shifting statute,
42 U.S.C. § 12205.
Federal Rule of Civil Procedure 54(d)(1) provides that “[u]nless a federal statute, these rules,
or a court order provides otherwise, costs . . . should be allowed to the prevailing party.” The rule
“contains a strong presumption that the prevailing party will be awarded costs,” and the court may
not deny or reduce a request for costs without a good reason for doing so. Pacheco v. Mineta, 448 F.3d
783, 793 (5th Cir. 2006) (citing Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1981)). The expenses
that a court may tax as costs under Rule 54(d) are enumerated in 28 U.S.C. § 1920. Crawford Fitting
Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441–42 (1987). Additionally, 42 U.S.C. § 12205, the ADA’s feeshifting statute, “allows a court to award the defending party of an ADA action ‘reasonable
attorney’s fees, including litigation expenses and costs,’ if the court finds the plaintiff’s claim was
‘frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’”
To the extent there had been any ambiguity over whether the order was directed at Plaintiff or her attorney, (see
Mot. Enforce Disc. Sanctions, Dkt. 87), this order clarifies.
Dutton v. Univ. Healthcare Sys., L.L.C., 136 F. App’x 596, 604 (5th Cir. 2005) (quoting Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)).
Defendant does not argue, and the Court has not previously found, that Plaintiff’s ADA
claims were frivolous. Accordingly, an award of costs under § 12205 is unwarranted. See id. The
Court will consider whether the expenses Defendant claims fall within the scope of allowable costs
under Rule 54 and § 1920.
Plaintiff asserts that several of Defendant’s expenses are not recoverable. First, she argues
that Defendant’s expenses related to lodging, mileage, certified mail, parking, telephone calls, tolls,
and meals—amounting to $665.04—are unrecoverable and should be disallowed. “It is well settled
that attorney travel expenses are not recoverable under § 1920.” Jensen v. Lawler, 338 F. Supp. 2d 739,
746 (S.D. Tex. 2004) (citing Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993)). Likewise,
expenses for certified mail and telephone calls are not listed as recoverable under § 1920 and
Defendant furnishes no basis—other than § 12205—for their recovery. See Maurice Mitchell
Innovations, L.P. v. Intel Corp., 491 F. Supp. 2d 684, 686 (E.D. Tex. 2007) (“Although the prevailing
party is entitled to its costs, [it] must still demonstrate that its costs are recoverable under Fifth
Circuit precedent . . . .”). The Court will therefore deduct the amount of $665.04 from the award of
Plaintiff next argues that Plaintiff’s expenses of $2,130.74 for private process servers is
unrecoverable. Section 1920 allows for the recovery of service of process by the U.S. Marshals, see 28
U.S.C. § 1920(1), but “absent exceptional circumstances, the costs of a private process server are not
recoverable under Section 1920.” Marmillion v. Am. Int’l Ins. Co., 381 F. App’x 421, 432 (5th Cir.
2010) (citing Cypress-Fairbanks Ind. Sch. Dist. v. Michael, 118 F.3d 245, 257 (5th Cir. 1997)).
Defendant asserts that exceptional circumstances are present in this case because its use of
private process servers was necessitated by Plaintiff’s failure to provide adequate discovery
responses until late in the litigation. Defendant served discovery on Plaintiff requesting information
about her medical providers on April 29, 2016, but Plaintiff provided incomplete responses.
Defendant sent six letters to Plaintiff between July 7 and October 27, 2016, concerning her
incomplete responses. Defendant filed a motion to compel on September 6, 2016, and
supplemented that motion on October 28, 2016. After the Magistrate Court granted Defendant’s
motion on November 8, 2016, Defendant claims that Plaintiff supplemented her disclosures but still
failed to provide critical information. Because of this, Defendant states that it had to undertake
extensive independent research to find the contact information for Plaintiff’s medical providers.
Having done so by December 9, 2016, Defendant asserts that it needed to act expeditiously to
secure Plaintiff’s medical records by the trial date of February 21, 2017, and required private process
servers in order to do so.
The Court does not agree that these facts constitute exceptional circumstances. Though
Defendant was likely aware that Plaintiff offered incomplete responses by June 2016, it did not seek
any relief from the Court until less than three weeks before the close of discovery on September 23,
2016. (Scheduling Order, Dkt. 18). While the Court appreciates Defendant’s attempts to resolve the
dispute without the involvement of the Court, it nonetheless finds that Defendant’s choice to delay
action until up to six fruitless letters had been exchanged contributed to its late access to the
requested information. Additionally, it is suggested in Defendant’s motion that defense counsel’s
other engagements made it impractical to use any alternative to private process servers between
December 9, 2016, and February 21, 2017. The Court does not find defense counsel’s unrelated
workload to be an appropriate basis for taxing these otherwise unrecoverable costs against Plaintiff.
The Court will therefore deduct an additional $2,130.74 from the award of costs.
Finally, Plaintiff argues that Defendant should not receive the full amount of its requested
court reporting fees. Plaintiff does not contend that these expenses are unrecoverable under § 1920;
rather, she suggests that the expenses are unreasonable because she offered to provide Defendant
with free copies of the deposition transcripts if Defendant had not already purchased them. (Walsh
Email, Dkt. 91-1 (“I’m still willing to provide copies of any deposition transcripts I have in this case,
if you guys haven’t already purchased them.”)). As Defendant points out, however, it had already
purchased the transcripts by the time the offer was made. Accordingly, the Court will allow
Defendant to recover the full amount of court reporting expenses.
After making the deductions for the reasons provided above, the Court finds that Defendant
is entitled to costs in the amount of $5,520.80.
Plaintiff filed objections to the Magistrate Court’s order imposing sanctions against her
attorney following the discovery dispute referenced above. (Dkt. 98). Because the matter is nondispositive, Plaintiff bears the burden of showing that the Magistrate Court’s order is “clearly
erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). It is not sufficient to simply show “an
alternative approach with which the district judge might agree if deciding the matter in the first
instance.” Nunn v. State Farm Mut. Auto Ins. Co., No. 3:08-CV-1486-D, 2010 WL 2044477 (N.D. Tex.
May 24, 2010) (“[D]istrict judges do not sit as second-tier decisionmakers concerning discovery
matters referred to the magistrate judge.”).
Having reviewed Plaintiff’s objections, the Court finds that Plaintiff has not carried her
burden of demonstrating clear error and concurs with the Magistrate Judge’s resolution of the
questions of law presented in the relevant orders for largely the reasons provided therein. (See Dkt.
84). The Court therefore overrules Plaintiff’s objections.
For the foregoing reasons, the Court GRANTS Plaintiff’s Motion for Costs, (Dkt. 86), and
OVERRULES Plaintiff’s objections to the Magistrate Judge’s order granting sanctions. (Dkt. 98).
Because this order clarifies the parties’ responsibilities with respect to the issue of sanctions, the
Court finds it unnecessary to consider Defendant’s Motion to Enforce Discovery Sanctions and will
therefore DISMISS the motion as moot. (Dkt. 87).
SIGNED on July 12, 2017.
UNITED STATES DISTRICT JUDGE
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