Cowden v. BNSF Ry. Co.

991 F.Supp.2d 1084

Kevin D. COWDEN, Plaintiff,

v.BNSF RAILWAY COMPANY, Defendant.

Case No. 4:08CV01534 ERW.

United States District Court,

E.D. Missouri,

Eastern Division.

Jan. 3, 2014.

Roger C. Denton, Elizabeth M. Wilkins, Jerome J. Schlichter, Joshua D. Margolis, Nelson G. Wolff, Schlichter and Bogard, St. Louis, MO, for Plaintiff.

Harlan A. Harla, Thompson Coburn, LLP, Belleville, IL, Misty L. Edwards, Boggs and Avellino, LLC, Clayton, MO, Thomas E. Jones, Crystal M. Campbell, Thompson Coburn, LLP, St. Louis, MO, for Defendant.

MEMORANDUM AND ORDER

E. RICHARD WEBBER, Senior District Judge.

This matter comes before the Court on Plaintiff Kevin D. Cowden's Motion for Bill of Costs [ECF No. 252].

I. BACKGROUND

This case arises out of injuries Plaintiff sustained while working as a conductor on a locomotive for Defendant BNSF Railway Company. On November 8, 2013, a jury returned a verdict in favor of Plaintiff in the amount of $1,671,253.90. The Court subsequently entered judgment on the verdict. On December 3, 2013, Plaintiff filed a Motion for Bill of Costs [ECF No. 252], asking the Court to tax Defendant $18,597.51. Defendant responded on December11, 2013, objecting to various amounts claimed by Plaintiff. [ECF No. 255]. Subsequently, Plaintiff filed his Reply Memorandum in Support of Plaintiff's Motion to Assess Costs Against Defendant [ECF No. 260]. In this filing, Plaintiff waived $8,749.66 of the sum originally sought, rendering many of Defendant's objections moot. Plaintiff now claims $9,847.35 in costs, representing fees of the Clerk, fees of the Court Reporter, fees for witnesses, and fees for exemplification and copies of papers. For the sake of clarity, the Court limits its discussion to amounts comprising the $9,847.35 currently sought by Plaintiff; unless otherwise stated, the Court will not discuss waived amounts.

II. DISCUSSION

Rule 54(d) of the Federal Rules of Civil Procedure provides that “costs—other than attorney's fees—should be allowed to the prevailing party.” See also In re Derailment Cases, 417 F.3d 840, 844 (8th Cir.2005) (“A prevailing party is presumptively entitled to recover all of its costs.”). Pursuant to 28 U.S.C. § 1920, the Court may tax costs for:

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

The Court may not award costs other than those authorized by § 1920, because this section “imposes rigid controls on cost-shifting in federal courts [.]” Brisco–Wade v. Carnahan, 297 F.3d 781, 782 (8th Cir.2002) (internal quotations omitted). Upon objection by the opposing party as to authorized costs, however, the Court may exercise its discretion to grant or deny costs. Pershern v. Fiatallis North America, Inc., 834 F.2d 136, 140 (8th Cir.1987).

In response to Plaintiff's Motion, Defendant has a number of Objections. Specifically, Defendant objects to taxation of certain fees of the Court Reporter for transcripts, witness fees, and fees for exemplification and the costs of making copies. For reasons discussed infra, the Court will tax Defendant $7,870.65 in costs.

A. Fees of the Clerk

Plaintiff incurred $350.00 in fees of the Clerk. Defendant does not object to taxation of this amount. The Court will therefore tax Defendant $350.00.

B. Fees of the Court Reporter for Transcripts¹

Plaintiff seeks to recover $4,808.38 ² in costs for transcripts of various depositions. In determining whether to award the costs of a deposition, “the underlying inquiry is whether the depositionsreasonably seemed necessary at the time they were taken.” Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 363 (8th Cir.1997) (internal quotations omitted). While deposition costs are unrecoverable if taken solely for discovery or investigative purposes, Ryther v. KARE 11, 864 F.Supp. 1525, 1534 (D.Minn.1994), “if the depositions were actually introduced in evidence or used at trial for impeachment purposes, then it is proper to conclude they were necessarily obtained for use in the case.” Frazier v. IBP, Inc., No. C97–0023, 1999 WL 33655745, at *10 (N.D.Iowa Feb. 2, 1999). For reasons discuss infra, the Court will award $3,145.93 in costs in this category.

1. Deposition of Plaintiff Totaling $306.00

Plaintiff seeks to recover $306.00, representing $303.00 for the cost of Plaintiff's deposition and $3.00 for corresponding exhibits. Defendant argues, because the deposition was taken for discovery purposes, it was “merely useful” and not necessary for use in the case. Plaintiff responds he anticipated Defendant would use his deposition for impeachment at trial, and it was therefore reasonably necessary for him to possess a copy.

The Court will tax this cost to Defendant. Defendant relies on Hansen v. Bradley, 114 F.Supp. 382 (D.C.Md.1953), but this case is unpersuasive. In Hansen, a District of Maryland case from 1953, the plaintiff prevailed at trial and sought recovery of the cost for her own deposition. Id. at 385. The court denied this request, because the plaintiff testified before the jury, and her deposition was neither admissible nor offered at trial. Id. Likewise, the remaining cases cited by Defendant merely stand for the proposition that parties may not recover costs for depositions used solely for exploratory purposes. See, e.g., Echostar Satellite Corp. v. Advanced Commc'ns Corp., 902 F.Supp. 213, 217 (D.Colo.1995); Crandall v. City and Cnty. of Denver, 594 F.Supp.2d 1245, 1248 (D.Colo.2009).

Here, however, Plaintiff's deposition was not merely investigative. Instead, Plaintiff correctly predicted Defendant would use his deposition for impeachment purposes. Thus, it reasonably necessary for Plaintiff to possess a copy of the deposition. The cost of Plaintiff's deposition, $303.00, will be taxed to Defendant.

Furthermore, the Court will tax Defendant an additional $3.00, representing the cost of copies of exhibits. As Plaintiff notes, Defendant has failed to cite any case supporting its blanket proposition that copies of deposition exhibits constitute unrecoverable costs. Rather, Defendant cites cases merely establishing parties may not recover costs of exhibits made for the convenience of counsel. See, e.g., Am. Guar. & Liab. Ins. Co. v. U.S. Fid. & Guar. Co., No. 4:06CV655 RWS, 2010 WL 1935998 (E.D.Mo. May 10, 2010), Clark v. Baka, No. 4:07CV477 DPM, 2011 WL 2881710 (E.D.Ark. July 19, 2011). Moreover, Plaintiff correctly states authenticated deposition exhibits are necessary for use in summary judgment pleadings, which require support with admissible evidence, seeFed.R.Civ.P. 56(c), and costs incurred for use in summary judgment proceedings are considered “necessarily obtained” within the meaning of 28 U.S.C. § 1920. See Dunn v. Nexgrill Indus., Inc., No. 4:07CV01875 JCH, 2011 WL 1060943, at *2 (E.D.Mo. Mar. 21, 2011) (finding deposition costs necessary where parties cited depositions in briefing motion for summary judgment); Cengr v. Fusibond Piping Systs., Inc., 135 F.3d 445, 455 (7th Cir.1998) (holding deposition costs “reasonably necessary” where obtained to support summary judgment motion). Therefore, the Court concludes costs for copies of deposition exhibits are recoverable to the same extent as their corresponding depositions.³

Accordingly, the Court will tax Defendant $306.00 for costs associated with Plaintiff's deposition.

2. Deposition of Terry Cordray Totaling $97.50

Plaintiff seeks to recover $97.50, representing $78.75 for the deposition of Terry Cordray and $18.75 for corresponding exhibits. Defendant contends, because Plaintiff did not call Cordray as a witness at trial, these costs are not taxable under 28 U.S.C. § 1920. Plaintiff counters, because Defendant took Cordray's deposition, Plaintiff reasonably needed to obtain a copy.

The Court finds Plaintiff reasonably needed a copy of Cordray's deposition. After Defendant took Cordray's deposition, Plaintiff needed to learn its contents. See United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indust. & Serv. Workers Int'l Union v. Trimas Corp., No. 1:06CV32 TS, 2007 WL 1295820, at *2 (N.D.Ind. Apr. 30, 2007) (“After the Defendant determined that it was necessary to depose the Plaintiff's expert, the Plaintiff was justified in obtaining a transcript of that deposition.”). Thus, the Court will tax $97.50 to Defendant for costs related to Cordray's deposition.

3. Depositions and Supplemental Depositions of Rebecca Summary and Alan Blackwell Totaling $660.08

Plaintiff to seeks to recover $660.08, representing (1) $98.00 for the deposition transcript of Rebecca Summary, (2) $61.50 for Summary's supplemental deposition transcript, including $5.50 for copies of exhibits, (3) $182.30 for the deposition transcript of Alan Blackwell, including $18.50 for copies of exhibits, (4) $166.25 for Blackwell's supplemental deposition transcript, and (5) $152.03 for Blackwell's second supplemental deposition. Defendant objects to taxing the costs of these transcripts on the bases they were not used at trial, and Plaintiff has failed to satisfy his burden of proving they were necessarily obtained for use in the case.

The Court will tax $660.08 to Defendant. The relevant inquiry is not whether the parties used the depositions at trial, but, rather, “whether the depositions reasonably seemed necessary at the time they were taken.” Zotos, 121 F.3d at 363; Smith v. Tenet Healthsystem SL, Inc., 436 F.3d 879, 889 (8th Cir.2006) (“Even if a deposition is not introduced at trial, a district court has discretion to award costs if the...