Deborah (Fiore) Labaty v. UWT, Inc. et al

Filing 189

Costs Taxed in the amount of $12,590.42 against Deborah (Fiore) Labaty (aej)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
DEBORAH FIORE LABATY,
Plaintiff,
v.
UWT, INC. ET. AL.,
Defendants.

§
§
§
§
§
§
§
§
§

Civil Action No. SA-13-CV-389-XR

ORDER ON COSTS
On this date, the Court considered Deborah (Fiore) Labaty’s Bill of Costs (docket no.
188). Because Labaty was the “prevailing party,” the Court awarded costs to Labaty pursuant
to Rule 54(d) and 47 U.S.C. § 605. Labaty seeks a total award of $15,016.80 in costs: $801.00
for clerk fees, $1,046.50 for service of process, and $13,169.30 for printed or electronically
recorded transcript fees.
Federal Rule of Civil Procedure 54(d) provides that costs “shall be allowed as of
course to the prevailing party.” Section 605 states that “[t]he court . . . shall direct the
recovery of full costs, including awarding reasonable attorneys’ fees to an aggrieved party who
prevails.” 47 U.S.C. § 605 (2006) (emphasis added).
First, it is undisputed that under the “full costs” language of § 605, courts must award a
prevailing party the costs allowed under 28 U.S.C. § 1920 (the general rule governing costs).
DirecTV, LLC v. Ertem, Civ. Ac. No. 13-487, 2015 WL 459398, at *4 (E.D. La. Feb. 3, 2015)

1

(citing Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 529 (5th Cir. 2001)).
Section 1920 provides:
A judge or clerk of any court of the United States may tax as
costs the following:
(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.
A bill of costs shall be filed in the case and, upon allowance,
included in the judgment or decree.
28 U.S.C. § 1920 (2012).
A. Fees of the Clerk
Labaty seeks an award of $801.00 for filing fees, which are allowed as fees of the
clerk. This includes the state court filing fee, the state fee for jury demand, and the fee for
issuance of summons charged by the Bexar County Clerk. The Court will award $801.00 for
the fees of the Clerk.
B. Fees for Service of Summons and Subpoena
Labaty also seeks $1,046.50 for service of summons. While this Court has held that
private process service fees are recoverable as costs, it is this Court’s practice to limit the
amount to that charged by the Marshal because the statute does not specifically authorize fees
for service of process but instead refers to “fees of the marshal,” which is $65.00. Lear

2

Siegler Servs v. Ensil Int’l Corp., Civ. A. No. SA: 05-CV-679-XR, 2010 WL 2595185, at *2
(W.D. Tex. June 23, 2010); see also 28 C.F.R. § 0.114. The service fees are therefore reduced
to $65.00 for each item served. In addition, Section 1821(a)(1) states that “a witness in
attendance at any court in the United States…or before any person authorized to take his
deposition…shall be paid the fees and allowances provided by this section.” See 28 U.S.C. §
1821(a)(1). A $40.00 per day witness fee is authorized by 28 U.S.C. § 1821(b) 1 and pursuant
to § 1821(c)(2), “[a] travel allowance equal to the mileage allowance which the Administrator
of General Services has prescribed . . . shall be paid to each witness who travels by privately
owned vehicle.”
Therefore, the $1,046.50.00 requested is reduced to $886.50. Two subpoenas were
served on the Texas Department of Banking on January 1, 2014. The Court will award the
$40.00 request for one subpoena service, and the Court will reduce the $80 request to $65.00
for the other subpoena served on the Texas Department of Banking. The Court reduces the
$142.50 requested for the Guy Gibson deposition to $112.50, which includes a $65 service fee
for the attempted service of Guy Gibson and a $47.50 service fee for additional attempts. The
Court awards the $109.00 requested for the Margaret McVan, which includes a $65 service
fee, a $40 witness fee, and a $4 mileage fee. The Court awards the $109 requested for the
Paul Skretny, which includes a $65 service fee, a $40 witness fee, and a $4 mileage fee. The
Court reduces the $100 requested for the subpoena served on Bruce Sands, as CEO of
Superior Gold Group, on July 2, 2013 to $65. The Court reduces the $115.00 requested for the
subpoena served on Bruce Sands individually on July 2, 2013 to $65. The Court reduces the
1

“A witness shall be paid by an attendance fee of $40 per day for each day’s attendance. A witness shall
also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of
attendance at the beginning and end of such attendance or at any time during such attendance.”

3

$117.00 requested for the second Margaret McVan deposition to $107, which includes a $65
service fee, a $40 witness fee, and a $2 advanced witness fee. The Court reduces the $117
requested for the Anthony Carl deposition to $107, which includes a $65 service fee, a $40
witness fee, and a $2 advanced witness fee. The Court reduces the $117 requested for the
Kelli Click deposition to $107, which includes a $65 service fee, a $40 witness fee, and a $2
advanced witness fee.

Accordingly the 1,046.50 requested for service of summons and

subpoenas is reduced to $886.50.
C. Fees for Printed or Electronically Recorded Transcripts
Labaty seeks costs for both the printed and electronically recorded transcripts of the
depositions of Jeffery Kelly, Scott Wetzel, Michael McCloskey, and Paul Maxwell. Labaty
requests a total of $13,169.30 for transcripts obtained in this case.
Costs related to the taking of depositions are allowed under § 1920(2) “if the materials
were necessarily obtained for use in the case.” 28 U.S.C. § 1920(2); Stearns Airport Equip.
Co., Inc. v. FMC Corp., 170 F.3d 518, 536 (5th Cir. 1999). “[A] deposition need not be
introduced into evidence at trial in order to be ‘necessarily obtained for the use in the case.’”
Fogleman v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991).
The United States Court of Appeals for the Fifth Circuit has not addressed whether a
prevailing party in a case can recover both printed and video graphic transcription costs.
Allstate Ins. Co. v. Plambeck, 66 F. Supp. 3d 782, 786 (N.D. Tex. 2014). Even though both
print and video transcripts are recoverable under 28 U.S.C 1920(2), “this court generally does
not award costs for both.” Dixon v. Comal City., Texas, No. SA-09-CV-831-XR, 2011 WL

4

1565970, at *1 (W.D. Tex. Apr. 25, 2011). Therefore, the Court will award Labaty the more
expensive costs of either print or video transcription for those deponents.
The Court awards all of the print transcript fees for deponents where video transcripts
were not taken, which include: $493.64 for the deposition of Robert Canfield, $295.26 for the
deposition of Rita Brady, $356.80 for the deposition of Kathleen Ryan, $428.51 for the
deposition of Ron Cullen, $485.59 for the deposition of Bruce Epstein, $273.27 for the
deposition of Stanley McGahan, $328.34 for the deposition of William Jewell, $186.10 for the
deposition of Rodney Phillips, $610.50 for the deposition of Margaret McVan, $868.50 for the
deposition of Kelli Click, $184.00 for the deposition of Anthony Carl, $337.50 for the
deposition of Jeffrey Desich, $683.00 for the depositions of Richard Desich Sr. & Jr., $821.20
for the deposition of Mike Dea, $55.00 for the deposition of Fran Goins, and $418.50 for the
deposition of Charles Bo Ives.
In addition, the Court awards Labaty the $1,222.50 requested for the video transcript of
Jeffrey Kelly’s deposition, but the Court does not award the $987.50 requested for the print
transcript of Jeffrey Kelly. The Court awards the $381.30 requested for the print transcript of
Scott Wetzel’s deposition, but the Court does not award the $250 for the video transcript of
Scott Wetzel. The Court awards the $648.65 and $877.61 requested for print transcript fees
for the deposition of Paul Maxwell, but the Court does not award the $375.00 requested for the
video transcript of Paul Maxwell. The Court awards the $976.03 requested for the print
transcript of Michael McCloskey’s deposition, but the Court does not award the $625
requested for the video transcript of Michael McCloskey. Labaty’s $13,169.30 request for
deposition transcripts is reduced to $10, 931.80.

5

D. Fees for Handling of Transcripts
Lastly, the requested $28.88 for FedEx fees, listed on transcript invoice 63692, should
be deducted from the overall amount of transcript costs, which are 10,931.80. The Fifth
Circuit has consistently held that § 1920 does not specifically allow recovery of courier or
messenger costs. Auto Wax Co. v. Mark V Products, Inc., Civ. Ac. No. 3:99-CV-0982-M,
2002 WL 265091, at *5 (N.D. Tex. Feb. 22, 2002). Postage and mail costs have generally
been denied on the grounds that both are considered overhead costs associated with operating
a law firm. Id. Therefore, the $10,931.80 for transcript fees is reduced to $10,902.92.
CONCLUSION
In sum, $12,590.42 in costs are awarded to Labaty as follows:
(1) $801.00 filing fee
(2) $886.50 for service of summons
(3) $10,902.92 for print and electronically recorded transcripts
It is so ORDERED.
SIGNED this 22nd day of August, 2016.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

6