Filed: Jun. 16, 2010
Latest Update: Feb. 22, 2020
Summary: Case: 08-61129 Document: 00511144403 Page: 1 Date Filed: 06/16/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED June 16, 2010 No. 08-61129 Lyle W. Cayce Clerk RAIMEE MARMILLION, Plaintiff - Appellant v. AMERICAN INTERNATIONAL INSURANCE COMPANY; AIG MARKETING INC; WILLIS NORTH AMERICA INC; WILLIS OF LOUISIANA INC, Defendants - Appellees Consolidated with No. 09-60228 RAIMEE MARMILLION, Plaintiff - Appellee v. WILLIS NORTH AMERICA
Summary: Case: 08-61129 Document: 00511144403 Page: 1 Date Filed: 06/16/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED June 16, 2010 No. 08-61129 Lyle W. Cayce Clerk RAIMEE MARMILLION, Plaintiff - Appellant v. AMERICAN INTERNATIONAL INSURANCE COMPANY; AIG MARKETING INC; WILLIS NORTH AMERICA INC; WILLIS OF LOUISIANA INC, Defendants - Appellees Consolidated with No. 09-60228 RAIMEE MARMILLION, Plaintiff - Appellee v. WILLIS NORTH AMERICA I..
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Case: 08-61129 Document: 00511144403 Page: 1 Date Filed: 06/16/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 16, 2010
No. 08-61129
Lyle W. Cayce
Clerk
RAIMEE MARMILLION,
Plaintiff - Appellant
v.
AMERICAN INTERNATIONAL INSURANCE COMPANY; AIG
MARKETING INC; WILLIS NORTH AMERICA INC; WILLIS OF
LOUISIANA INC,
Defendants - Appellees
Consolidated with
No. 09-60228
RAIMEE MARMILLION,
Plaintiff - Appellee
v.
WILLIS NORTH AMERICA INC; WILLIS OF LOUISIANA INC;
AMERICAN INTERNATIONAL INSURANCE COMPANY; AIG
MARKETING INC,
Defendants - Appellants
Appeals from the United States District Court
for the Southern District of Mississippi
No. 1:07-cv-1132
Case: 08-61129 Document: 00511144403 Page: 2 Date Filed: 06/16/2010
No. 08-61129
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Raimee Marmillion, a victim of Hurricane Katrina, filed suit against
American International Insurance Company (“AIG”), AIG Marketing, Inc., Willis
North America Inc., and Willis of Louisiana, Inc. (“Willis”) after AIG allegedly
refused to honor the insurance policy on her damaged beach house. Although
the case proceeded to trial, the district court granted the defendants’ motions for
judgment as a matter of law. The defendants, as the prevailing parties, moved
for costs. The district court denied their costs in substantial part. The parties’
appeals are before the court.
I.
Willis procured four insurance policies through AIG for Marmillion in
October 2003. The policies included two homeowner’s insurance policies—one
for Marmillion’s beach house in Mississippi and one for Marmillion’s house in
Metairie, Louisiana; an excess liability policy; and an automobile policy. The
premium for all four policies was billed under a single account and payable in
four installments. AIG agreed to directly bill Marmillion for each premium
payment.
In late 2003 and continuing into 2004, Marmillion contacted Willis several
times about changing her billing address. Marmillion’s living situation changed
frequently during that time. Despite Marmillion’s requests, her billing address
never changed before AIG sent the bill for the next premium installment. She
regularly failed to receive billing statements from AIG and regularly failed to
make timely premium payments. AIG issued Marmillion at least eight notices
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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of cancellation and, on at least one occasion, temporarily cancelled her policies.
Despite these problems, Marmillion was able to arrange with Willis and AIG to
pay an amount to keep all four polices in force.
The policies renewed in October 2004, and Marmillion continued to
experience billing problems. For instance, Marmillion did not receive a bill in
September or November 2004. Both times, AIG sent Marmillion a notice of
cancellation. Upon receipt of the notice, Marmillion contacted Willis and asked
that it send her the bill so she could avoid cancellation. Willis faxed the bills and
the premiums were paid before the policies cancelled.
Because AIG continued to send the bills to the wrong address, Marmillion
again contacted Willis in November 2004 and asked that her billing address be
changed to her home in Arkansas. She also asked Willis to cancel her
automobile policy. A Willis employee sent AIG an e-mail in November 2004
asking AIG to change Marmillion’s “insured address” to the Arkansas address
and to cancel her automobile policy. An AIG employee interpreted the e-mail as
a request to change the mailing address, not a request to change the mailing and
billing addresses. AIG changed her mailing address and cancelled the
automobile policy, but her billing address remained the same. In mid-January
2005, Marmillion again requested that her billing address be changed.
AIG sent Marmillion her third bill for the 2004–2005 policy year on
January 21, 2005. However, because the bill was not sent to her Arkansas
address, Marmillion did not receive it. AIG sent a reminder notice, but again,
not to the Arkansas address. Having not received the bill or the reminder notice,
Marmillion did not pay her bill.
On March 21, 2005, AIG mailed cancellation notices to Marmillion at the
Arkansas address for the beach house policy and the Metairie policy for non-
payment of premium. The notices stated the amounts due and when the policies
would be cancelled. Marmillion received the notices of cancellation before the
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policies were cancelled, but did not ask Willis to send her the third bill or pay the
amount owed. At the time of cancellation, both policies had accrued excess
premiums. The premium credits were refunded to Marmillion on May 4, 2005,
but the check was sent to the wrong address.
In June, Marmillion contacted Willis about her account. A Willis employee
informed her that the policies had been cancelled, and Marmillion told the
employee that she did not believe her. According to Marmillion’s testimony, the
employee told Marmillion that she would contact AIG and that Marmillion did
not need to make a payment and that she had a credit coming.
In August 2005, Marmillion contacted Willis’s corporate office in New York
and spoke to Sandra Bravo. According to Marmillion, Bravo informed
Marmillion that she was going to help Marmillion “take care of this” and asked
Marmillion to tell her exactly what Marmillion needed covered. That day,
Marmillion wrote a check to AIG for $7,576.80 but did not send it.
In a letter dated August 18, 2005, a Willis employee informed Marmillion
that the beach house policy had been cancelled effective April 6, 2005, and that
Willis would make no attempt to have the policy reinstated or replaced absent
receipt of a written request from Marmillion. Marmillion never contacted Willis
to seek reinstatement or replacement of her policy.
Hurricane Katrina struck on August 29, 2005, and damaged the beach
house. On September 15, 2005, Marmillion overnighted the check drafted in
August, and Willis assisted Marmillion in filing her claim on the beach house
policy. Her claim was later denied by AIG on the basis that AIG cancelled her
policy before the claim arose.
After AIG denied her claim, Marmillion filed suit. The case proceeded to
trial. But, at the close of Marmillion’s case in chief, the district court granted
AIG’s motion for judgment as a matter of law on one of Marmillion’s theories of
breach of contract and dismissed AIG Marketing, Inc. The district court also
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granted Willis’s motion for judgment as a matter of law on one of Marmillion’s
theories of negligence and dismissed Willis North America, Inc. At the close of
the case, the district court granted judgment as a matter of law on Marmillion’s
remaining claims.
As the prevailing parties, the defendants filed bills of costs. Marmillion
objected, and the district court substantially denied the requested costs. This
appeal ensued.
We will consider first whether judgment as a matter of law was properly
granted on Marmillion’s breach of contract and negligence claims. We will then
consider whether the district court abused its discretion in substantially denying
the defendants’ costs.
II.
We review de novo whether a district court properly granted judgment as
a matter of law, applying the same legal standard as the district courts. Brown
v. Bryan County, OK, 219 F.3d 450, 456 (5th Cir. 2000). “If a party has been
fully heard on an issue during a jury trial and the court finds that a reasonable
jury would not have a legally sufficient evidentiary basis to find for the party on
the issue,” a district court may resolve an issue against the party and grant a
motion for judgment as a matter of law on a claim or defense. F ED. R. C IV. P.
50(a). “In evaluating such a motion, the court must consider all of the evidence
in the light most favorable to the nonmovant, drawing all factual inferences in
favor of the non-moving party, and leaving credibility determinations, the
weighing of evidence, and the drawing of legitimate inferences from the facts to
the jury.” U.S. Commodity Futures Trading Comm’n v. Dizona,
594 F.3d 408,
413 (5th Cir. 2010) (citation omitted).
On appeal, Marmillion argues that the district court erred in granting the
defendants’ motions for judgment as a matter of law because she produced
legally sufficient evidence that would allow a reasonable jury to find in her favor
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on her breach of contract and negligence claims. Under the above standard, we
will review the sufficiency of the evidence produced.
A.
Marmillion asserts that AIG breached the insurance agreement by
wrongfully cancelling the beach house policy for failure to render the third
premium payment. According to Marmillion, no payment was due because her
premium credit exceeded the amount owed and AIG had a duty to apply the
credit to her outstanding balance. The question on appeal is whether
Marmillion produced legally sufficient evidence demonstrating that before the
beach house policy cancelled, Marmillion had a premium credit that exceeded
the amount owed on the policy.
Marmillion argues that a reasonably prudent jury could find that
Marmillion had a premium credit of $856.80 and that the third premium
payment was $344.80. To support her argument that she had a premium credit
of $856.80, Marmillion relies on two stipulations. The first stipulation stated
that a premium credit of $439.60 resulted from the cancellation of the Metairie
policy. The Metairie policy cancelled on April 1, 2005. The second stipulation
stated that a credit of $417.20 resulted from the cancellation of the beach house
policy. The beach house policy cancelled on April 6, 2005. Considering this
evidence in the light most favorable to Marmillion, on April 6, 2005, before the
beach house policy cancelled, Marmillion had a premium credit of $439.60. She
did not have a credit of $856.80 until the beach house policy cancelled.
We must now ask whether Marmillion produced sufficient evidence
demonstrating that she owed less than $439.61 on the beach house policy.
Marmillion claims that she owed $344.80. To support this position, she relies on
three documents—the notices of cancellation for the Metairie and beach house
policies and the January 21, 2005 bill. These documents show that on January
21, 2005, Marmillion owed a minimum of $1,470.80 for the four policies on the
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account (the automobile policy, the personal excess liability policy, and the two
homeowners policies). Specifically, she owed $248.80 on the personal excess
liability policy, $724.40 on the beach house policy, and $497.60 on the Metairie
policy. The installment schedule listed $344.80 as the amount due for the third
installment, the amount paid as “-$1,126.00,” and an outstanding balance of
$1,470.80. The current amount due for all policies on the account was $1,470.80.
On March 21, 2005, AIG sent Marmillion notice that it planned to cancel the
Metairie policy for non-payment of premium on April 1, 2005, and the beach
house policy on April 6, 2005. At that time, Marmillion owed $378.80 on the
Metairie policy and $724.40 on the beach house policy.
Marmillion argues that a genuine issue of material fact exists as to the
amount she owed on the beach house policy because the January 21, 2005 bill
stated that the amount due for the third installment was $344.80 but also stated
that $1,470.80 was the current amount due for all policies and that she
specifically owed $724.40 on the beach house policy. At trial, Marmillion offered
no explanation or evidence as to why she owed $344.80 on the beach house
policy, as opposed to $724.40. Absent testimony or additional evidence
explaining why $344.80 was the amount owed or the reason for the apparent
discrepancy, the document, standing alone, would not provide a jury a legally
sufficient evidentiary basis to find that Marmillion owed less than $439.61 on
the beach house policy. See Coats v. Pierre, 890 F.2d 728, 732 n.1 (5th Cir.
1989). Under Mississippi law, the plaintiff has the burden of proving the right
to recover for the breach of an insurance agreement. See Broussard v. State
Farm Fire & Cas. Co.,
523 F.3d 618, 625 (5th Cir. 2008) (citation omitted).
“[T]his basic burden never shifts from the plaintiff.”
Id. The district court did
not err in granting AIG judgment as a matter of law on this theory of breach of
contract.
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B.
Marmillion also argues that AIG breached the insurance agreement by
failing to send billing statements to Marmillion’s proper address. AIG moved for
judgment on this theory arguing that even if it breached the agreement by
failing to mail the billing statements to the correct address, the breach was not
material and did not excuse Marmillion’s duty to pay the premium. The district
court agreed and held that any breach by AIG was not material. The issue on
appeal is whether AIG materially breached the insurance agreement.
Under Mississippi law, “[a] breach is material if (1) a party fails to perform
a substantial part of the contract or one or more of its essential terms or
conditions, (2) the breach substantially defeats the contract’s purpose, or (3) the
breach is such that upon a reasonable construction of the contract, it is shown
that the parties considered the breach as vital to the existence of the contract.”
Lauderdale County Sch. Dist. v. Enter. Consol. Sch. Dist., 24 F.3d 671, 686 (5th
Cir. 1994) (citing UHS-Qualicare v. Gulf Coast Cmty. Hosp.,
525 So. 2d 746, 756
(Miss. 1987)). Ordinarily, materiality is a question of fact for the jury to decide.
Hensley v. E.R. Carpenter Co., Inc.,
633 F.2d 1106, 1110 (5th Cir. 1980); Sanford
v. Federated Guar. Ins. Co.,
522 So. 2d 214, 217 (Miss. 1988).
On appeal, Marmillion argues that questions of fact exist, but she fails to
identify how those facts support a finding of material breach. She does not argue
or attempt to show that AIG’s duty to send bills to the correct address was a
substantial part of the agreement or an essential term or condition. Nor does
she argue that the breach substantially defeated the contract’s purpose or that
mailing the bills to the correct address was vital to the existence of the contract.
But, even if argued, the evidence presented at trial fails to support such
conclusions.
Before the policy cancelled, AIG notified Marmillion that she owed $724.40
on the beach house policy and that the policy would be cancelled for non-
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payment. She received with either that notice of cancellation, or with a previous
notice, instructions advising her as to how to avoid cancellation. She admitted
receipt of the notice and instruction sheet at trial. Both the notice of
cancellation and the January 21, 2005 bill stated that Marmillion owed $724.40
on the beach house policy. Marmillion knew the amount owed, what to do to
cure the delinquency, and the consequences of failing to do so. Marmillion failed
to present legally sufficient evidence demonstrating that receiving the bill at the
correct address (the Arkansas address) was an essential term of the agreement.
During the policy period at issue, AIG never fulfilled its obligation to bill
Marmillion at the correct address. Despite this failure, Marmillion paid the first
and second premium, after she received the notice of cancellation. AIG received
its payment and Marmillion’s coverage continued. The failure to bill Marmillion
at the correct address did not substantially defeat the contract’s purpose.
Finally, the insurance agreement cannot be reasonably construed to show
that the parties considered sending the bills to the correct address vital to the
existence of the agreement. For these reasons, we affirm the district court’s
judgment as a matter of law on Marmillion’s breach of contract claims.1
C.
At trial, Marmillion argued that Willis was negligent for two independent
reasons. Her first theory of negligence was predicated on Willis’s failure to act
on her requests to ensure that AIG corrected her billing address. At the close of
Marmillion’s case, the district court granted Willis judgment as a matter of law
on this theory of negligence, reasoning that if AIG’s failure to bill Marmillion at
the correct address was not a material breach, then the failure of Willis to
1
Because Marmillion failed to produce legally sufficient evidence on her breach of
contract claims, we need not consider whether the district court erred in granting AIG’s
motion for judgment as a matter of law on the alternative ground of acquiescence or erred in
granting AIG’s motion for summary judgment on Marmillion’s bad faith claim.
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ensure that AIG had the proper billing address could not have caused
Marmillion harm.
Marmillion’s only argument on appeal is that if AIG’s breach was material,
the court should also reverse the district court’s judgment as a matter of law in
favor of Willis. Because Marmillion failed to produce sufficient evidence of
materiality, we affirm the district court’s judgment on this issue.
D.
Marmillion’s second theory of negligence is predicated on Willis’s alleged
failure to reinstate or replace the beach house policy. After the close of the
evidence, the district court granted Willis judgment as a matter of law finding
that Marmillion failed to prove breach and causation. On review, “we may
affirm the district court’s decision on any ground supported by the record.”
Phillips ex rel. Phillips v. Monroe County, Miss., 311 F.3d 369, 376 (5th Cir.
2002).
To prevail on this theory of negligence, Marmillion must establish that
Willis had a duty to reinstate or replace the beach house policy, Willis breached
that duty, and the breach proximately caused her damages. See Lovett v.
Bradford, 676 So. 2d 893, 896 (Miss. 1996). Mississippi law recognizes an
insurance broker’s “duty to his principal to procure insurance policies with
reasonable diligence and good faith.” Id.; see also First United Bank of
Poplarville v. Reid,
612 So. 2d 1131, 1137 (Miss. 1992) (holding that an
insurance broker “has a duty to use that degree of diligence and care with regard
to securing insurance which a reasonably prudent person would exercise in the
transaction of that person’s own business of a like nature”). A broker who has
agreed to procure insurance will be liable for any damages that result from the
broker’s failure to procure the requested insurance. Pittman v. Home Indem.
Co.,
411 So. 2d 87, 89 (Miss. 1982). The question before the court is whether
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Marmillion produced sufficient evidence that Willis agreed to reinstate or
replace the beach house policy. We hold that she did not.
Marmillion testified as follows. In June 2005, Marmillion contacted Willis
on several occasions to discuss her AIG account. Cathy Guilfo, a Willis employee
in the local office, informed Marmillion that her policies had been cancelled and
that she had no insurance coverage. Guilfo then told Marmillion that she did
not need to make a payment and that she had a credit on her account.
Marmillion told Guilfo that she did not believe the polices had been cancelled.
Guilfo told Marmillion she would contact AIG, but the record is void as to why
Guilfo was going to contact AIG.
On August 15, 2005, after Guilfo failed to return Marmillion’s telephone
calls, Marmillion contacted Sandra Bravo, a Willis corporate executive in New
York. She contacted Bravo because she wanted to find out the status of her
policies. Marmillion understood that Bravo did not handle customer calls but
would try to help. Marmillion described to Bravo the poor service she received
from Willis. Specifically, she told Bravo about her attempts to get someone to
change her address, send her invoices, help her understand where her payments
were allocated, and let her know that her billing address had been corrected.
She also told Bravo that there were some policies she might want to cancel.
Because of her problems with Willis, Marmillion told Bravo that she had gotten
insurance quotes and had discussed transferring her policies to another
insurance broker. Marmillion further testified that Bravo told her that Willis
did not want to lose her business, she did not have to obtain another policy, and
that Bravo would “assist [her] in making sure everything was covered and
everything was taken care of.” According to Marmillion, Bravo asked
Marmillion what she needed to make sure Marmillion had coverage on after they
got off the phone. Marmillion listed the policies she believed she was currently
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paying for, including the beach house policy. Bravo told Marmillion that she
would take care of it and that someone would get in touch with her.
Sandi Davis, another Willis employee, sent Marmillion a letter dated three
days later explaining that the automobile and excess liability polices were in full
force and effect but that the beach house policy, the Metairie policy, and another
automobile policy had been cancelled. The letter further stated that the
cancelled policies would remain terminated and that Willis would make no
attempt to replace the policies without an express written request. Marmillion
did not contact Willis again until after the hurricane.
Even considering the evidence in the light most favorable to Marmillion,
there is no evidence that Marmillion ever asked a Willis employee to reinstate
or replace the beach house policy. When specifically asked by her attorney as to
whether she wanted Willis to reinstate the policy, Marmillion evaded answering
the question. There is no evidence that Sandra Bravo, or any other Willis
employee, ever agreed to reinstate or replace the policy. Further, there is no
evidence that Bravo knew that the policy needed to be reinstated or replaced
during her conversation with Marmillion, and thus could not have agreed to
reinstate or replace the policy. Although Marmillion testified that Bravo asked
her “what do I need to do to make sure you have coverage on today when we
hang up” and said she would take care of it, without any other evidence, these
statements do not indicate that Bravo agreed to have the policy reinstated or
replaced. There is insufficient evidence in the record for a reasonable jury to
conclude that Willis agreed to reinstate or replace the beach house policy.
Accordingly, we affirm the district court’s judgment as a matter of law on this
theory of negligence.2
2
Because judgment as a matter of law was properly granted on each of Marmillion’s
claims, we need not consider whether the district court erred in finding that Marmillion could
not recover her rebuilding costs.
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III.
As the prevailing parties, AIG, AIG Marketing, Inc., Willis North America
Inc., and Willis submitted bills of costs. Specifically, the AIG defendants sought
$30,468.92 in costs for transcripts, service of summons and subpoenas, and
copying. The Willis defendants sought $32,239.37 in costs for fees of the clerk,
transcripts, witnesses, and copying. Marmillion objected, and the district court
reduced the AIG defendants’ recoverable costs to $415.40 and the Willis
defendants’ award to $1,920.04. The defendants appeal those deductions.
Generally, a prevailing party should be allowed costs. F ED. R. C IV. P.
54(d)(1). The taxable costs include clerk fees; “[f]ees for printed or electronically
recorded transcripts necessarily obtained for use in the case; . . . [f]ees and
disbursements for printing and witnesses; . . . [and] [f]ees for exemplification and
the costs of making copies of any materials where the copies are necessarily
obtained for use in the case[.]” 28 U.S.C. § 1920; see Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437, 441 (1987).
The district court is allotted broad discretion in taxing costs and may order
each party to bear its own costs. Alberti v. Klevenhagen, 46 F.3d 1347, 1358 (5th
Cir. 1995); Hall v. State Farm Fire & Cas. Co.,
937 F.2d 210, 216 (5th Cir. 1991).
There is, however, a strong presumption “that the prevailing party is prima facie
entitled to costs and it is incumbent on the losing party to overcome that
presumption since denial of costs is in the nature of a penalty.” Walters v.
Roadway Express, Inc.,
557 F.2d 521, 526 (5th Cir. 1977) (citation and marks
omitted). We review a district court’s award of costs for an abuse of discretion
and will reverse only upon a clear showing of an abuse of that discretion. Migis
v. Pearle Vision, Inc.,
135 F.3d 1041, 1049 (5th Cir. 1998). “A district court
abuses its discretion when its ruling is based on an erroneous view of the law or
a clearly erroneous assessment of the evidence.” Nunez v. Allstate Ins. Co.,
604
F.3d 840, 844 (5th Cir. 2010) (citation omitted); Hinojosa v. Butler,
547 F.3d
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285, 292 (5th Cir. 2008) (citation omitted). Under the above standard, we review
the district court’s award of costs.
A.
The defendants complain that the district court abused its discretion by
failing to award costs for the eighteen depositions taken during discovery. Costs
related to the taking of depositions are allowed under § 1920(2) and (4) “if the
materials were necessarily obtained for use in the case.” 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
use in the case.’” Fogleman v. ARAMCO,
920 F.2d 278, 285 (5th Cir. 1991). A
deposition is necessarily obtained for use in the case “[i]f, at the time the
deposition was taken, a deposition could reasonably be expected to be used for
trial preparation, rather than merely for discovery.”
Id. A district court’s
factual determination of whether a deposition was necessarily obtained for use
in the case is afforded great latitude.
Id. at 285-86.
Before the district court, the AIG defendants argued that fourteen of the
eighteen depositions taken during discovery were necessarily obtained for use
in the case because Willis and Marmillion noticed the depositions and AIG
obtained copies of those deposition transcripts to evaluate Marmillion’s and
Willis’s trial strategies and to prepare its own defense. The AIG defendants
further argued that because Marmillion designated twelve of the depositions in
the pretrial order, the AIG defendants needed those deposition transcripts to
review Marmillion’s designated testimony for objections and counter-
designations. The AIG defendants specifically argued that Olie Jolstad’s
deposition was necessary to AIG’s case because AIG used it to support AIG’s
Daubert challenge and as a result, Marmillion stipulated that Jolstad would not
provide testimony against AIG at trial. Jolstad was Marmillion’s property
damage expert.
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Like the AIG defendants, the Willis defendants argued that twelve of the
video deposition transcripts were necessarily obtained for use in the case
because Marmillion designated each of the individuals as witnesses she would
call to testify by deposition. They also argued that they had a reasonable
expectation that four other deposition transcripts might be used at trial because
Marmillion and AIG identified those individuals as possible live witnesses at
trial. They concluded their argument by stating that they had a reasonable
expectation that the depositions of each of the witnesses listed in their bill of
costs would be used at trial as well as for trial preparation.
The district court denied the defendants all of their depositions costs
finding that the defendants failed to demonstrate that the transcripts and videos
of each of the eighteen depositions taken by the parties were reasonably
necessary at the time they were taken. The district court also noted that it was
unclear whether the depositions were taken for discovery purposes or trial
preparation. We have never required a prevailing party to demonstrate that a
particular deposition was reasonably necessary at the time it was taken for a
party to recover the costs of the deposition transcript. Again, the pertinent
question is whether the transcript was necessarily obtained for use in the case.
It appears undisputed that the majority of these depositions were taken at
Marmillion’s behest, were designated by Marmillion for use during trial, and
were actually used at trial or in support of the parties’ pretrial motions. The
defendants had a reasonable expectation that at least some of the transcripts
would be used for trial preparation. The district court’s denial of all deposition
costs was an abuse of discretion. We vacate the district court’s denial of costs
for printed and electronically recorded transcripts and remand for further
consideration under the appropriate standard.
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B.
The defendants also argue that the district court abused its discretion in
denying the costs for daily trial transcripts. The district court found that real
time reporting and daily transcripts were not necessary because 1) there were
other attorneys at trial who could have taken notes and 2) the trial was not so
complicated as to necessitate the use of real time reporting and daily transcripts.
The court specifically found that daily transcripts and real time reporting were
merely a convenience to the parties.
In Studiengesellschaft Kohle mbH v. Eastman Kodak Co., this court held
that “[t]o award the cost of daily transcripts, the court must find that they were
not obtained primarily for the convenience of the parties but were necessarily
obtained for use in this case.” 713 F.2d 128, 133 (5th Cir. 1983) (quotations and
citation omitted). “Necessity” is a factual finding.
Id. To demonstrate that the
district court’s finding on the issue of necessity was clearly erroneous, the
defendants point to the following evidence: 1) Marmillion agreed to split the cost
of the daily transcripts; 2) the defendants used the transcripts to argue their
motions for directed verdict; and 3) the defendants submitted portions of the
transcripts to the district court to rebut Marmillion’s assertions that she had
created an issue of fact. Although the above evidence would support a finding
by the district court that the transcripts were necessarily obtained for use in this
case, the evidence does not compel such a finding. Further, the cited evidence
does not dispel the district court’s finding that the transcripts were obtained
primarily for the convenience of the parties. We affirm the district court’s denial
of daily transcript costs.
C.
The defendants also appeal the district court’s partial denial of copying
costs. Before the district court, the AIG defendants sought $1,014.42 for copies
of documents that were obtained for use in the case. Finding that the AIG
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No. 08-61129
defendants did not provide any explanation concerning $599.02 worth of copies,
other than noting that they were “photocopies for trial,” the district court limited
the AIG defendants’ award of copying costs to $415.40.
On appeal, the AIG defendants argue that the facts clearly show that the
AIG defendants provided a thorough explanation of their copying expenses. In
response to Marmillion’s objections, the AIG defendants, in an attachment, listed
the number of pages copied, the cost of each copy, and the purpose of each copy.
For instance, on November 3, 2008, the AIG defendants spent $6.80 to copy 68
pages to make a copy of the AIG trial exhibits for the court and a copy to be used
by AIG at trial. It seems reasonably clear that the district court did not consider
the exhibit submitted by AIG detailing the copying costs. Accordingly, we vacate
the partial denial of copying costs and instruct the district court to consider the
AIG defendants’ exhibit detailing their copying costs when assessing whether
the costs were necessarily obtained for use in the case.
The Willis defendants also complain of the partial denial of their copying
costs. The district court granted the Willis defendants $485.10 of the $1,776.50
they requested. As to the denied costs, the district court found
[t]he other copying costs claimed by Willis appear to concern the
copying of videos (presumably video depositions), the scanning of
documents produced in discovery, the copying of every pleading filed
in the case, and the placement of barcodes on exhibits so that
certain technology could be used in order to publish exhibits to the
jury. The Court finds that these remaining “copying” expenses are
not recoverable, since Willis has not demonstrated that these
expenses were necessary for trial preparation rather than the
convenience of its attorneys.
To support their position that the district court abused its discretion by not
allowing the Willis defendants to recover the full amount of their copying costs,
the Willis defendants merely state that they “made electronic copies of all
exhibits and video depositions for use at trial and used numerous electronic
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copies of exhibits at trial to question witnesses and publish those exhibits to the
jury at the same time” and the use of the electronic copies was not merely for the
convenience of counsel. The Willis defendants’ argument is insufficient to
establish that the district court abused its discretion. Accordingly, we affirm the
district court’s partial denial of Willis’s copying costs.
D.
The AIG defendants also sought $158.18 in subpoena costs they incurred
for service of a deposition subpoena on a witness. The district court found that
the AIG defendants had not demonstrated that the subpoena costs were
recoverable as a necessary expense in trial preparation.
The AIG defendants cite a Fifth Circuit opinion for the proposition that
private service of process fees are recoverable under Section 1920. Gaddis v.
United States, 381 F.3d 444, 456 (5th Cir. 2004). In Gaddis, this court noted
that the Ninth Circuit had interpreted “[f]ees of the clerk and marshal” in
Section 1920 to include the fees of private process servers to support this court’s
holding that the court may interpret the meaning of Section 1920.
Id. This
court did not, however, adopt the Ninth Circuit’s interpretation.
Id.
In Cypress-Fairbanks Independent School District v. Michael, this court
held that absent exceptional circumstances, the costs of a private process server
are not recoverable under Section 1920.
118 F.3d 245, 257 (5th Cir. 1997).
Because the AIG defendants did not argue and have not demonstrated that
exceptional circumstances exist to warrant such an award, we affirm the district
court’s denial of the private process server fees.
IV.
For these reasons, we affirm the district court’s judgment as matter of law
against Marmillion. We, however, vacate the district court’s awards of costs and
remand for further consideration consistent with this opinion.
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