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Sadulsky v. Town of Winslow

United States District Court, D. Maine

May 27, 2016

WILLIAM P. SADULSKY, et. al., Plaintiffs,
v.
TOWN OF WINSLOW, et al., Defendants.

          ORDER ON BILL OF COSTS

         Prevailing parties are entitled to move for an award of costs pursuant to Federal Rule of Civil Procedure 54(d)(1), which provides in pertinent part that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs ...should be allowed to the prevailing party.” As determined by the Court and the jury, Defendants are the prevailing party in this case. Judgment (ECF No. 133). Expenses that may be taxed are specified in 28 U.S.C. § 1920, but the costs must be “necessarily incurred in the case, ” pursuant to 28 U.S.C. § 1924. Defendants seek costs in the total amount of $4, 399.69 for transcript fees, witness fees and exemplification and copy costs. Bill of Costs, (ECF No. 136). Plaintiffs have objected to the Bill on the basis of unreasonableness and necessity as well as the chilling effect of awarding costs in this type of case. Plaintiff’s Objection to Bill of Cost, (ECF No. 137). Having made an independent review of Defendants’ Bill of Costs as well as Plaintiffs’ response in opposition, the Clerk of Court hereby taxes against Plaintiffs the total amount of two thousand six hundred eighty-six dollars and eighty-five cents ($2, 686.85). Certain claimed costs are hereby excluded as explained herein.

         I. Public Interest and Cost Recovery

         Plaintiffs argue that the important public interest of allowing civil suits where there are allegations of excessive force or misuse of government power warrants not taxing Defendants’ costs against them. Plaintiffs aver that “tag[ging]” defense costs against meritorious plaintiffs attempting to hold public officials accountable will chill the future prosecution of these types of cases and will harm the public good. Id. at pp. 1-2.

         The starting point for consideration is that the First Circuit has interpreted Rule 54(d)(1) as creating a presumption that “favor[s] cost recovery for prevailing parties.” B. Fernandez & HNOS, Inc. v. Kellogg USA, Inc., 516 F.3d 18, 28 (1st Cir. 2008); Papas v. Hanlon, 849 F.2d 702, 704 (1st Cir. 1988) (“presumption inherent in Rule 54(d)”); See also Am. Auto. Mfrs. Ass’n v. Comm’r, Mass. Dep’t of Envtl. Prot., 31 F.3d 18, 28 (1st Cir. 1994) (“Prevailing parties are normally entitled to costs.”); and In re Two Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire Litig., 994 F.2d 956, 962 (1st Cir. 1993) (“[T]his negative discretion...operates in the long shadow of a background presumption favoring cost recovery for prevailing parties.”). While the First Circuit permits that “a district court may…exercise its discretion to disallow a prevailing party’s bill of costs in whole or in part, ” the trial court must “articulat[e] reasons” to do so. In re Two Appeals, 994 F.2d at 963.

         Thus, the directive of Rule 54(d)(1) is a difficult burden to overcome, and the Clerk is unpersuaded by Plaintiffs’ argument. The rule makes clear that, in the ordinary course, a prevailing party is entitled to an award of costs regardless of the type of suit. The rule’s emphasis is found in the statement “[u]nless a federal statute, these rules or a court order provides otherwise.” Fed.R.Civ.P. 54(d)(1) (emphasis added).

         Additionally, this Court has generally disallowed the taxation of costs to a prevailing party only in circumstances of demonstrated financial hardship. Other courts consider scant few additional arguments. Some courts delineate that “only misconduct by the prevailing party…or the losing party’s inability to pay will suffice to justify denying costs.” Cherry v. Champion Intern. Corp., 186 F.3d 442, 446 (4thCir. 1999) quoting Congregation of The Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219, 222 (7th Cir.1988). See also In re Paoli R.R. Yard PCB Litigation, 221 F.3d 449 (3rd Cir. 2000); Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir.1985) [describing the denial of costs as “in the nature of a penalty” (internal quotation marks and citation omitted)] and Serna v. Manzano, 616 F.2d 1165, 1167 (10th Cir.1980).

         Plaintiffs’ good faith claim and their pursuit of important statutory rights “does not provide a sufficient basis to avoid the presumptive taxation of costs.” Cherry, 186 F.3d at 446. Considering the intent and basis of a suit in order to deny the taxation of costs would frustrate the operation of Rule 54(d)(1) and would require the Court to engage in value judgments. The express language in the first clause of Rule 54(d)(1) does not provide for such value judgments without express provision by rule or statute. Fed.R.Civ.P. 54. “Rule 54(d)(1) should not be interpreted to include a public interest exception as defined by the judiciary on a case by case basis.” Cherry at 448.

         II. Court Reporter Fees and Deposition Costs

         Transcript fees are taxable to the extent that they were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). In this case, Defendants have requested fees for court reporter transcripts and exhibits related to five depositions, those of Haley Fleming, Joshua Veilleux, Michael Michaud, William and Sandra Sadulsky and Michael Curran. Plaintiffs have objected to the costs related to the Curran deposition because it was expedited and costly. Based upon a review of the docket in this case, each of the depositions was necessarily obtained in that they were either used at trial or used and cited to in Defendants’ motion for summary judgment. Memorandum of Law in Support of Bill of Costs, p. 3 (ECF No. 136-1).

         While each of the depositions was necessarily obtained, some of the associated costs for the depositions will not be taxed. Postage, emailing, shipping and handling costs for the delivery of depositions are considered ordinary business expenses that may not be charged as taxable costs in relation to obtaining transcripts. Alexander v. CIT Technology Financing Services, Inc., 222 F.Supp.2d 1087 (N.D. Ill. 2002); See also Maurice Mitchell Innovations, L.P. v. Intel Corp., 491 F.Supp.2d 684 (E.D. Tex. 2007) and Treaster v. HealthSouth Corp., 505 F.Supp.2d 898 (D. Kan., 2007). Thus, Defendants’ costs for deposition transcripts will be reduced by $50, the total amount of postage and handling fees charged for each of the five depositions.

         Plaintiffs object to the cost of the Dr. Curran deposition. They say that its costs should not be awarded because it was produced in an expedited manner, in part because defense counsel would not agree to a reasonable accommodation in the trial schedule and because of the need to schedule the deposition later in the process - right before trial - in order to accommodate schedules. Plaintiff’s Objection to Bill of Cost, p. 3, (ECF No. 137). Defendants say the expedited transcript was necessary because “Plaintiffs scheduled the deposition to occur four days before the first day of trial, ” and the deposition was necessary because the witness could not attend trial. Id.

         According to the documentation provided by Defendants, it appears that the Curran transcript was produced at an expedited page rate of $4.63 per page while the other four transcripts were produced at an average rate of $2.50 per page. Documentation in Support of Bill of Costs, pp. 7-11 (ECF No. 136-2). The expedited rate represents an extra cost for a transcript which “is not taxable unless prior court approval of expedition has been obtained or the nature of the litigation necessitates expedited receipt.” Fogleman v. ARAMCO, 920 F.2d 278 at 286 (5th Cir. 1991). See also U.S. v. Davis, 87 F.Supp.2d 82, 90, (D.R.I. 2000); Pan American Grain Mfg. Co. v. Puerto Rico Ports Authority, 193 F.R.D. 26, 40 (D.P.R. 2000) (“..an expedited transcript, without explanation…for its necessity, is a mere convenience for counsel”); Farmer v. Arabian American Oil Co., 379 U.S. 227 (1964); Sun Ship, Inc. v. Lehman, 655 F.2d 1311, 1318 n.48 (D.C. Cir. 1981) (overnight transcription of depositions disallowed when purely for convenience of counsel); and Hill v. BASF Wyanotte Corp., 547 F.Supp. 348, 352 (E.D. Mich. 1982) (no showing of need for expedited transcript of deposition and disallowing daily transcript due to no prior court approval). While Defendants have attempted to explain the necessity of the expedited rate, Plaintiffs have alleged that the rate was necessary because of decisions of counsel or scheduling problems. Where the facts supporting necessity in this case are debatable, the Clerk finds that the burden to demonstrate necessity has not been met and that the “[a]dditional charges incurred merely for the convenience of one party's counsel should not be taxed to the other.” Fogelman at 286. Therefore, because the parties agree that the Curran transcript was necessary, Defendants’ costs for the transcript will be taxed at the reduced, standard rate rather than the expedited rate. The Clerk will apply the standard rate of $2.50 per page rather than expedited rate of $4.62 per page, resulting in a total taxed cost of $161.25 for the Curran deposition ($152.50 for the transcript and $8.75 for the copies).

         Therefore, the total amount to be taxed for transcripts is $1, 423.25.

         III. Fees ...


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