JOHN J. O'SULLIVAN, Magistrate Judge.
THIS MATTER is before the Court on the Bill of Costs (DE# 166, 8/11/17) and the Supplemental Bill of Costs (DE# 189, 10/2/17)
On July 13, 2017, the jury rendered a verdict in favor of the defendants and against the plaintiff.
Rule 54(d)(1) of the Federal Rules of Civil Procedure provides that costs other than attorneys' fees shall be allowed to the prevailing party unless the court otherwise directs. Fed. R. Civ. P. 54(d)(1). A "prevailing party," for purposes of the rule, is a party in whose favor judgment is rendered.
The plaintiff argues that the defendants' request for costs should be denied in its entirety because the plaintiff does not have the ability to pay those costs. See Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 166) (DE# 184 at 9, 9/25/17). In support of this argument, the plaintiff has filed an affidavit.
The defendants respond that the Court should not consider the plaintiff's financial state in awarding costs to the defendants. Defendants' Reply to Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 188 at 9, 10/2/17). The defendants note that the plaintiff's affidavit is not sufficiently detailed and that the plaintiff could pay costs over time.
The Court finds that there is no justification to reduce a cost award based solely on the plaintiff's alleged inability to satisfy a judgment.
Title 28, United States Code, Section 1920 sets out the specific costs that may be recovered:
A judge or clerk of any Court of the United States may tax as costs the following:
28 U.S.C. §1920. In the exercise of sound discretion, trial courts are accorded great latitude ascertaining taxable costs. However, in exercising its discretion to tax costs, absent explicit statutory authorization, federal courts are limited to those costs specifically enumerated in 28 U.S.C. § 1920.
The defendants seek to recover $400.00 paid to the Clerk of the Court as a filing fee. This amount was incurred when the defendants removed the case from state court to this Court. Section 1920(1) permits the recovery of "[f]ees of the clerk and marshal," 28 U.S.C. § 1920(1). The plaintiff does not dispute this amount. See Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 166) (DE# 184 at 3, 9/25/17). Accordingly, the Court will allow the defendants to recover
The defendants seek to recover $8,051.50 for fees incurred in the service of summonses and subpoenas. At the outset, the undersigned notes that there appears to be a $58.00 discrepancy between the amount claimed on the Supplemental Bill of Costs (DE# 189) ($8,051.50) and the amount calculated by adding the itemized costs in Exhibit "A" of the defendant's reply ($7,993.50). Accordingly, the Court will start with the lower number.
The plaintiff objects to the award of costs on the ground that "Defendants . . . fail to show that these fees for subpoenas (mostly for discovery subpoenas, apparently) are taxable, or that they were reasonable and necessary for use in the case." Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 166) (DE# 184 at 3-4, 9/25/17) (citation and footnote omitted). In their reply, the defendants explain that "[t]he majority of the subpoenas were issued to third parties for records relating to Plaintiff and her alleged injuries" and note that "[t]he costs of obtaining medical records in a personal injury case are clearly allowable under Rule 54(d) since they were necessarily obtained for use in the case." Defendants' Reply to Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 188 at 3, 10/2/17).
Private process server fees may be taxed.
The plaintiff further states that:
Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 166) (DE# 184 at 4, 9/25/17) (footnote omitted). The plaintiff lists the 33 entities by name in footnote 2 of her motion.
The defendants state that some "providers or facilities actually had different locations or had moved from previous locations or had different addresses for billing records only or providers had left the prior facilities and moved to new facilities" and that it was necessary "to serve additional subpoenas upon some of the providers and facilities in order to obtain updated records from Plaintiffs continued treatment." Defendants' Reply to Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 188 at 3, 10/2/17). Exhibit "A" to the defendants' reply provides more explanations as to the subpoenas served in the instant case.
The Court finds that, in some instances, the defendants have not shown that multiple attempts to serve the same provider were necessary. For example, on October 28, 2016, the defendants served Family Medical Clinic Group with subpoenas at similar addresses (3785 W. Flagler Street) and (3485 W. Flagler Street). On November 2, 2016, the defendants served subpoenas on the Sunshine Wellness Clinic Corporation at two separate addresses. On December 9, 2016, the defendants served Donald L. Caress, M.D. at similar addresses (NE 25th Street and NW 25th Street). On December 9, 2016, the defendants served Julio Cruz, M.D. (Concentra Medical Center) and Julio Cruz, M.D. at the same address. On December 14, 2016, the defendants served Ingrid M. Mixter, M.D. with two subpoenas at separate addresses. It appears that these expenses could have been avoided had the service provider been contacted and the correct address been verified prior to the service of the subpoenas. The plaintiff should not bear those costs. In total, the Court finds that $1,862.00 constitutes duplicative and/or unnecessary service fees and will not allow the defendants to recover this amount.
The plaintiff also argues that the defendants should not be permitted to recover costs incurred for rush service of subpoenas and identifies several invoices where rush service was billed. Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 166) (DE# 184 at 5, 5 n. 5, 9/25/17). The defendants state that they incurred rush service charges due to the discovery cutoff. See Exhibit "A" (DE# 188 at 28).
The Court finds that there were no extraordinary circumstances in this matter requiring expedited service. As such, rush service fees will not be awarded. The Court calculates the additional fee for rush service in the instant case to be $22.50 ($80.00 minus $57.50) per subpoena. The Court has already eliminated some of the "rush service" fees by disallowing costs for the service of duplicative subpoenas (some of which also included rush service fees). Rush service for the remaining subpoenas totals $247.50. Accordingly, the Court will disallow $247.50 for rush service.
Lastly, the plaintiff argues that the defendants should not be allowed to recover for the service of subpoenas on their own experts. Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 166) (DE# 184 at 5, 9/25/17). The defendants maintain that it was necessary to serve subpoenas on their own experts (Gregory C. Keller, M.D., Julianne Frain, Ph.D. and Linda Weseman, P.E.) because "so that if for some reason . . . said witnesses had an emergency and could not attend the trial, Defendants would have grounds for a continuance." Defendants' Reply to Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 188 at 4, 10/2/17). The defendants reason that "[i]f [its] experts were not under subpoenas, the grounds for a continuance would be waived."
The Court will not allow the defendants to recover for the costs incurred in the service of their three experts. Accordingly $225.00 for the service of subpoenas on Dr. Keller ($65.00), Dr. Frain ($80.00) and Ms. Weseman ($80.00) will be disallowed.
In sum, the Court will allow the defendants to recover
The defendants seek to recover $2, 142.95 for ordering the deposition transcripts of Alba Cardona, Timothy Leverette, Dan Kepple, Apryl Hall, Ronald DeMeo M.D., Lawrence Alexander M.D. and Julio Robia, M.D.
The defendants argue that it necessarily incurred these costs because "these witnesses were listed on Plaintiffs Fed.R.Civ.P. Rule 26(a)(1) & (2) Initial Disclosures (DE #24)" and "[a]s such, Defendants could reasonably expect these witnesses to testify at trial." Defendants' Reply to Plaintiffs Response and Objections to Defendants' Bill of Costs (DE# 188 at 5, 10/2/17).
The plaintiff argues that the defendants have failed to show how the fees it incurred for printed or electronically recorded transcripts were necessary.
The defendants respond that it was necessary to order the deposition transcripts of Mr. Kepple and Ms. Hall because the plaintiff took those depositions and "[n]aturally, Defendants requested a copy of Plaintiffs original transcript." Defendants' Reply to Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 188 at 5, 10/2/17). The defendants further argue that deposition transcript costs are still taxable even if a deposition is not used at trial.
The courts have interpreted section 1920 to include only those costs that are "necessarily obtained for use in the case."
The Court will allow the defendants to recover the costs incurred for the deposition transcripts for the listed witnesses.
Accordingly, the defendants are permitted to recover
The defendants seek to recover $3,931.74 in printing costs.
The plaintiff argues that the defendants have failed to carry their burden of showing how these documents "were used or intended to be used in the case." Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 166) (DE# 184 at 7, 9/25/17). The plaintiff further states that:
In their reply, the defendants state that this amount "include[s] printing copies of Plaintiff and Defendants' exhibits, trial boards and binders of case law and records for use at trial." Defendants' Reply to Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 188 at 6, 10/2/17). The defendants submitted Exhibit "C" with their reply explaining the breakdown of these costs.
At the outset, the Court finds that $966.15 for trial binders will be disallowed as duplicative of an entry sought to be recovered for exemplification costs. See Discussion,
The defendants seek to recover $160.00 for witness fees. The plaintiff did not object to this cost. See Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 166) (DE# 184 at 7, 9/25/17). Accordingly, the Court will allow the defendants to recover
The defendants seek to recover $855.95 in exemplification costs.
Exhibit "C" to the Defendants' Reply to Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 188 at 6, 10/2/17) provides a breakdown of these costs. The defendants seek to recover $497.15 for "copies of Defendants' trial exhibits for binders for trial — 6 copies [3 for Court — Judge, Clerk and Law Clerk; 3 for Defense Counsel — Attorney, Trial Paralegal and Clients]."
The total number of copies sought by the defendants (other than the permitted trial binders) is 3,033 black and white copies and 36 color copies. As with the printing costs, the number of copies for which the defendants seek reimbursement is unreasonable, and the defendants fail to adequately explain why such a large number of copies were necessary in this case. The Court finds that while some of the copies were necessary for the defense of this action, not all of the copies for which the defendants request reimbursement were necessary to defend this action. The Court will therefore reduce the printing costs (other than the allowed binders) sought by the defendants by half.
The Court will allow the defendants to recover
The defendants seek to recover $520.00 for use of interpreters. The plaintiff does not object to this cost. Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 166) (DE# 184 at 8, 9/25/17). Accordingly, the Court will allow the defendants to recover
The defendants seek to recover $2,275.65 for "other costs." The plaintiff argues that the "Defendants provide no explanation whatsoever regarding the intended or actual use of these documents, presumably obtained by subpoena" and "[a]s such, the Defendants' request to tax `other costs' should be denied." Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 166) (DE# 184 at 9, 9/25/17). In their reply, the defendants state that these "other costs" are for obtaining the "Plaintiff's medical records and other related information." Defendants' Reply to Plaintiff's Response and Objections to Defendants' Bill of Costs (DE# 188 at 8, 10/2/17). The defendants have attached Exhibit "D" to their reply which includes a list of these costs.
The Court will allow the defendants to recover the full amount sought for these costs because they were incurred in order to obtain the plaintiff's medical records.
In total, the Court will allow the defendants to recover
ORDERED AND ADJUDGED that the Supplemental Bill of Costs (DE# 189, 10/2/17) is
DONE AND ORDERED.