Councell et al v. Homer Laughlin China Company

Filing 116

MEMORANDUM AND OPINION AND ORDER Overruling Plaintiffs' Objections to the Defendant's Bill of Costs and Awarding Defendant Costs As Sought: Pursuant to Federal Rule of Civil Procedure 54(d), Local Rule of Civil Procedure 54.01,and Title 28, United States Code, Section 1920, the defendant is hereby awarded all costs requested in its bill of costs ECF No. 112 in the total amount of $4,957.60. The Clerk is DIRECTED to enter an amended judgment order in this civil action which reflects this award. Signed by Senior Judge Frederick P. Stamp, Jr. on 6/1/12. (rjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CAROL L. COUNCELL and CHARLES E. COUNCELL,
Plaintiffs,
v.

Civil Action No. 5:11CV45
(STAMP)

THE HOMER LAUGHLIN CHINA COMPANY,
a/k/a HLC, a/k/a HOMER LAUGHLIN,
a/k/a FIESTAWARE,
a/k/a HOMER LAUGHLIN CHINA,
a/k/a NEWELL BRIDGE AND RAILWAY CO.,
Defendant.
MEMORANDUM OPINION AND ORDER
OVERRULING PLAINTIFFS’ OBJECTIONS
TO DEFENDANT’S BILL OF COSTS AND
AWARDING DEFENDANT COSTS AS SOUGHT
I.

Background

On March 15, 2012, this Court awarded summary judgment in
favor of the defendant in all claims brought in this case, and
dismissed this civil action from the active docket of this Court.
On April 4, 2012, the defendant filed, pursuant to Federal Rule of
Civil Procedure 54(d), Local Rule of Civil Procedure 54.01, and
Title 28, United States Code, Section 1920, a bill of costs, asking
this Court to award it certain itemized litigation costs.

The

defendant’s bill of costs was filed on this district’s designated
bill of costs form, along with schedules of costs A and B, each of
which itemize the costs requested, and attach copies of itemized
receipts for all costs sought.

The bill of costs requests that

costs and fees be taxed to the plaintiffs for the $350.00 fee of

the clerk for the removal of this case, and for costs associated
with obtaining printed and/or electronic transcripts for use in
this case.1

The total amount of costs requested is $4,957.60.

Following the defendant’s timely filing of this bill of costs, the
plaintiffs filed objections to the same.

The defendant replied,

offering retort to each of the plaintiffs’ objections.
II.

Applicable Law

Federal Rule of Civil Procedure 54(d), Local Rule of Civil
Procedure 54.01, and Title 28, United States Code, Section 1920 all
provide that this Court may award certain fees and costs to the
prevailing party in a civil action if a bill of such fees and costs
is properly filed in the case.

Federal Rule of Civil Procedure

54(d) states that, “unless a federal statute, these rules, or a
court order provides otherwise” such costs “should be allowed.”
The local rules of this district provide further requirements for
proper filing of a bill of costs.

Those rules require that the

bill of costs be prepared on the designated form “supplied by the
clerk,” and that the bill “contain an itemized schedule of costs
documenting each separate cost and statement signed by counsel for
the prevailing party that the schedule is correct and the charges
were necessarily incurred.”

1

$1,324.00 for the transcripts of depositions of Pat Shreve,
Joseph M. Wells, III and Eric Furbee; $1,006.10 for transcripts of
two depositions of Ken McElhaney; $500.90 for a transcript of the
deposition of Richard Brinkman; and $1,776.60 for transcripts of
the depositions of the plaintiffs, Charles and Carol Councell.
2

Title 28, United States Code, Section 1920 designates the
specific types of fees recoverable, and allows recovery of costs
for “fees of the clerk and marshal” and for “fees of the court
reporter for all or any part of the stenographic transcript
necessarily obtained for use in the case.”

The prevailing party

bears the burden of demonstrating that the costs sought were
“necessarily obtained for use in the case.”

See Ramonas v. W. Va.

Univ. Hospitals-East, Inc., No. 3:08CV136, 2010 U.S. Dist. LEXIS
85537,

*5-6

(N.D.

W.

Va.

Aug.

19,

2010).

Further,

the

determination of whether to award costs to the prevailing party in
an action is within the sound discretion of the district court, and
courts must assess the reasonableness of the costs requested with
careful scrutiny.2

Id. at *6.

However, the language of Federal

Rule of Civil Procedure 54(d)(1) “creates the presumption that
costs are to be awarded to the prevailing party,” and costs should
only be denied for “good reason.”

Cherry v. Champion Int’l Corp.,

186 F.3d 442, 446 (4th Cir. 1999).
III.

Discussion

The plaintiffs’ objections to the defendant’s bill of costs
argue that the defendant’s filing is insufficient according to the

2

The plaintiffs here do not contest the reasonableness of the
amount sought or of any of the actual costs requested. Further,
this Court finds that all of the costs requested are reasonable in
nature and amount.
3

local rules because Schedule A and Schedule B are not signed3 and
because it does not satisfy the defendant’s burden of showing that
all costs were “necessarily obtained for use in the case.”
U.S.C. § 1920.

28

Further, the plaintiffs claim that an award of

costs in this case would be premature, because the deposition
transcripts for which costs are requested by the defendant continue
to be applicable, and are indeed being used, in a state court case
between these parties that is ongoing at this time.

Finally, the

plaintiffs contend that they are individuals of modest means while
the defendant is a company much more able to absorb the costs of
litigation.
Initially, the plaintiffs’ contention that the defendant’s
filing is insufficient under the local rules is without merit.
Local Rule of Civil Procedure 54.01, as quoted above, requires that
a prevailing party file a bill of costs “within thirty (30) days
after the entry of final judgment on Form AO 133 -- Bill of Costs
-- supplied by the Clerk.” Both of these requirements have clearly
been fulfilled.

The rule further requires that the prevailing

party include “an itemized schedule of costs documenting each
separate cost and a statement signed by counsel for the prevailing
party that the schedule is correct and the charges were actually
and necessarily incurred.” (emphasis added).

3

The plaintiffs acknowledge that the bill of costs itself is
signed.
4

The defendant has provided two schedules of costs, Schedule A,
which details that fee of the clerk for removal and attaches a
receipt of the same, and Schedule B, which details the depositions
for which transcripts were ordered and the cost of each, and
attaches receipts for each transcript.

Further, although the

schedules of costs are not themselves signed by counsel for the
defendant with a statement averring that they are correct and
“actually and necessarily incurred,” the bill of costs contains
such a signed statement.

The local rules do not require each

schedule to be signed, but rather require that the schedules be
filed and that a signed statement be filed.

Accordingly, the

defendant has correctly filed its bill of costs pursuant to the
local rules.
This Court also disagrees with the plaintiffs’ assertion that
the defendant has failed to meet its burden of showing that the
costs

requested

for

obtaining

deposition

“necessarily obtained for use in the case.”

transcripts

were

Schedule B of the

defendant’s bill of costs itemizes costs for obtaining transcripts
for eight depositions:
1.

Pat Shreve;

2.

Joseph M. Wells, III;

3.

Eric Furbee;

4.

Ken McElhaney;

5.

Richard A. Brinkman in his individual capacity;

5

6.

Richard

A.

Brinkman

in

his

capacity

as

representative of the defendant Homer Laughlin China Co.;
7.

Carol Councell; and

8.

Charles Councell.

It is not disputed that the transcripts of each and every one
of these depositions were attached, at least in part, and largely
in

their

entirety,

to

each

of

the

parties’

defendant’s motion for summary judgment.

briefs

of

the

It is also not disputed

that each and every one of these depositions was heavily cited and
referenced in both parties’ briefs of the same. The defendant also
notes in its response to the plaintiffs’ objections to its bill of
costs that, with the exception of the plaintiffs Charles and Carol
Councell’s

depositions,

transcripts

were

all

purchased

of
were

the

depositions

noticed

by

the

for

which

plaintiffs.

Finally, the defendant also aver in its bill of costs that each of
these transcripts were “necessarily incurred” in this action.
Accordingly, the defendant has met its burden of showing that the
costs sought were necessary to this litigation.
This Court also cannot decline to award costs to the defendant
in this action simply because the plaintiffs state that they are of
limited means.

While limited means of the plaintiffs is a factor

which this Court may consider in determining whether to award
costs, the plaintiffs do not provide any evidence of their limited
means

beyond

assertions

that

in

6

2010,

they

made

$41,000.00

combined, and that they have since struggled financially and have
“had to rely on handouts from other family members.”

These

unsupported statements alone give this Court no evidence of the
plaintiffs’ current financial status which could support a finding
that awarding the defendant the costs requested would create an
“element of injustice.”

Cherry, 186 F.3d at 446.

Further, the

United States Court of Appeals for the Fourth Circuit has endorsed
awarding costs to prevailing parties even when the unsuccessful
litigant in the case proceeded in forma pauperis.4

Id. at 447.

This serves as strong evidence that the burden for showing that
limited financial needs merits the refusal to award costs is quite
high, and the plaintiffs cannot sustain such a significant burden
by presenting only unsupported contentions of “limited financial
means.”

Id.

Also in Cherry, the Fourth Circuit found that reliance upon
comparative economic means of the parties in determining whether to
award fees is inappropriate because, “[s]uch a factor would almost
always favor an individual plaintiff . . . over her employer
defendant” and would “undermine the foundation of the legal system
that justice is administered to all equally, regardless of wealth
or status.”

Id. at 448.

Accordingly, the defendant’s ability to

4

“In forma pauperis” describes the permission granted to a
poor person to proceed without liability for court fees or costs.
Black’s Law Dictionary 849 (9th ed. 2009).
7

pay its own costs is also not a basis for this Court to refuse to
award costs.
As a final matter, the ongoing state court matters between
these parties are irrelevant to this Court’s determination of
matters in this case, which has proceeded to its conclusion in this
Court independently of any matters continuing in other courts. Any
stipulation of the parties in state court to use any of the
materials used in this case may be considered by the state court in
the case before it.

Similarly, this Court is only charged with

considering the matters before it in this case.

Accordingly, any

ongoing matters between these parties which are not currently
before this Court will not be considered in the determination of
whether to award costs and fees in this case.
V.

Conclusion

For the reasons stated above, the plaintiffs’ objections to
the defendant’s bill of costs are OVERRULED.

Pursuant to Federal

Rule of Civil Procedure 54(d), Local Rule of Civil Procedure 54.01,
and Title 28, United States Code, Section 1920, the defendant is
hereby awarded all costs requested in its bill of costs (ECF No.
112) in the total amount of $4,957.60.

The Clerk is DIRECTED to

enter an amended judgment order in this civil action which reflects
this award.
IT IS SO ORDERED.

8

The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

June 1, 2012

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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