MYRON H. THOMPSON, District Judge.
This cause is now before the court on the plaintiffs' objection to defendant Santa Fe Protective Services, Inc. bill of costs. The objection will be sustained in part and overruled in part.
The plaintiffs, who applied for security-guard positions with Santa Fe, brought this lawsuit on behalf of themselves and all others similarly situated, charging that Santa Fe discriminated against them on the basis of age, in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634. The plaintiffs asserted both `disparate treatment' and `disparate impact' claims. Jurisdiction is proper under 29 U.S.C. § 626(c). The court granted summary judgment in favor of Santa Fe,
Rule 54 of the Federal Rules of Civil Procedure allows for the taxation of costs, other than attorneys' fees, to a prevailing party as a matter of course. The court looks to 28 U.S.C. § 1920 to determine which costs may be taxed.
The plaintiffs' objection falls into four categories: (1) the depositions of the 17 named plaintiffs in the lawsuit; (2) the deposition of Mark Liming, Santa Fe's Vice President; (3) additional deposition expenses; and (4) docket fees.
First, the plaintiffs argue that the depositions of the named plaintiffs were (1) not necessarily obtained for use in this case and (2) "improperly taken or unduly prolonged." Pl. Obj. (Doc. No. 104) at 4. The plaintiffs' arguments are meritless. As stated, the named plaintiffs alleged, under both disparate-impact and disparate-treatment theories, that Santa Fe discriminated against them on account of their age. Investigating each plaintiff's background and personal history with Santa Fe was certainly necessary to the suit and, unsurprisingly, these depositions were used in support of Santa Fe's motion for summary judgment. Admittedly, this case was disposed of prior to trial, on the basis of Santa Fe's motion for summary judgment. However, this fact is not fatal to Santa Fe's bill for costs. Section 1920 provides that, "A judge or clerk of any court of the United States may tax as costs the following: . . . (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case." Therefore, the fact that a court disposes of the case at the summary-judgment stage is no impediment to an award of costs, provided that the costs were reasonably necessary for use in the case.
The plaintiffs' argument that the depositions were either "unduly prolonged" or "improperly taken" is also without merit. The plaintiffs' argument boils down to the assertion that Santa Fe should not have asked each plaintiff the same questions about Fort Rucker generally, including each plaintiff's employment history at Fort Rucker under the employer from whom Santa Fe took over and whether each plaintiff previously took and passed a physical-fitness test under this former employer. Because the new physical-fitness test used by Santa Fe was the employment policy the plaintiffs alleged violated their rights under the ADEA, this information from the viewpoint of each plaintiff was certainly not unduly repetitive; this information was central to issues in the case as a whole as well as at summary judgment, and Santa Fe reasonably wanted to know each plaintiff's take on the information, especially given that the case was based not only on a theory of disparate impact but on a theory of intentional disparate treatment as well. In addition, most of the depositions ranged between 60 and 70 pages, and were conducted in two hours or less. The subject and length of each deposition was most reasonable.
Second, the plaintiffs argue that Santa Fe cannot recover the cost of Vice President Mark Liming's deposition because it was taken for Santa Fe's mere convenience. Admittedly, if a deposition were taken merely for convenience, to aid in a more thorough preparation of the case, or for purpose of investigation only, the costs would not be recoverable.
In the alternative, the plaintiffs argue that the cost of Liming's deposition should be reduced because it was obtained and used, by agreement of the parties, in another case,
Third, the plaintiffs request a reduction in deposition costs for "delivery fees, condensed transcripts and disks or data drives." Pl. Obj. (Doc. No. 104) at 2. Because Santa Fe "does not object to reducing the cost award by . . . the amount allocated to the delivery fees, data drives, and condensed transcript costs," Def. Reply (doc. no. 107) at 6, the court makes no substantive ruling on whether the law requires such a reduction; instead, on the basis of this concession, the court is left to determine which costs fall within this group. The plaintiffs seek a reduction of $2,237.56, which is too high. The plaintiffs apparently reach this number by including the half-day per diem fees, which were charged to have the court reporters take the depositions. Because these fees were part of the expense for the taking of the depositions, the plaintiffs are not entitled to a reduction for them. Santa Fe calculates the reduction, based upon delivery fees, data drives, and condensed transcript costs, at $379. This number, however, is too low, but appears to result from a simple error in calculation related to the Loe and Kamide depositions, which were done by a reporting service different from the one that took the other depositions and which reported fees on a different type of invoice. The $379 figure comes from the sum of (1) the condensed transcript, disk, and drive costs for the remaining 18 depositions, which total $357.06 (there were no delivery charges for these depositions), and (2) the $22.00 delivery charge for the Loe and Kamide depositions ($357.06 + 22 = $379.06). Santa Fe's number, however, excludes the $64.50 "exhibit copying/scanning/burn to CD" charge on the Loe and Kamide invoice, which is the same as that for the disk and drives on the other invoices. Invoice (Doc. No. 101) at 14. Accordingly, the deposition costs should be reduced by the sum of these numbers, $443.56, to reflect this charge ($379.06 + $64.50 = $443.56). The remaining costs are for the depositions and are allowable.
Fourth, the plaintiffs argue that Santa Fe is entitled to only $55 in docket fees, not the $70 it requested. The parties agree that, at $2.50 a deposition, Santa Fe is entitled to $50 in docket fees for the 20 depositions entered in this case. See 28 U.S.C. § 1923(a). The $15 disparity derives from the parties' dispute over whether Santa Fe is due $5 or, instead, $20 under § 1923(a), which provides that "docket fees . . . may be taxed as costs as follows: $20 on trial or final hearing . . .; [and] . . . $5 on motion for judgment and other proceedings on recognizances."
The law is well-settled that, because, where entry of summary judgment resolves all issues in the case, thereby making it a final, appealable order, it is a "final hearing" to which the $20 fee applies.
In addition, it is equally clear that the $5 fee for a "motion for judgment and other proceedings on recognizances" does not apply here. Section 1923's reference to a "motion for judgment" was substituted in 1948 for the Latin phrase "scire facias" to make § 1923 consistent with changes being simultaneously made to the Federal Rules of Civil Procedure.
(1) The plaintiffs' objection to costs bill (doc. no. 104) is sustained to the extent that defendant Santa Fe Protective Services, Inc.'s costs bill of $7,444.11 is reduced by the following amounts: $206.73 and $443.56, for a total reduction of $650.29. The objection is overruled in all other respects.
(2) Costs in the amount of $6,793.82 ($7,444.11-$650.29) are therefore taxed against the plaintiffs.