Wyne v. Medo Industries, Inc., No. CIV. RDB-02-1812.

• Decision Date: 12 August 2004
• Docket Number: No. CIV. RDB-02-1812.
• Parties: Robert M. WYNE et al., Plaintiff, v. MEDO INDUSTRIES, INC., Defendant.
• Court: U.S. District Court — District of Maryland

Page 584

329 F.Supp.2d 584

Robert M. WYNE et al., Plaintiff, v. MEDO INDUSTRIES, INC., Defendant.

No. CIV. RDB-02-1812.

United States District Court, D. Maryland. Northern Division.

August 12, 2004.

Robert M. Wyne, Silver Spring, MD, pro se.

Nicolas W. Lewis, Point of Rocks, MD, pro se.

Dennis M. Ettlin, Brown and Sturm, Rockville, MD, for Plaintiffs.

Scott R. Schoenfeld, Washington, DC, and Joseph M. Beauchamp, Sharon A. Israel, Gregory L. Porter, and Jaime E. Rocha, Jenkens and Gilchrist PC, Houston, TX, for Defendant.

MEMORANDUM OPINION

BENNETT, District Judge.

On March 25, 2004, this Court issued an Order and Judgment granting Defendant Medo Industries, Inc.'s ("Defendant") Motion for Summary Judgment on the grounds that the action was barred by the statute of limitations. Now pending is Defendant's Bill of Costs, which was filed pursuant to Local Rule 109.1 (D.Md.2001) and Rule 54(d) of the Federal Rules of Civil Procedure. Plaintiffs pro se Robert M. Wyne and Nicholas W. Lewis (collectively "Plaintiffs") timely filed their opposition to Defendant's application for costs. The issues have been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons set forth below, this Court will GRANT in part and DENY in part Defendant's Bill of Costs.

DISCUSSION

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: "[e]xcept when express provision therefor is made either in a statute of the United States or in these rules, costs ... shall be allowed as of course to the prevailing party unless the court otherwise directs...." The rule makes clear that, in the ordinary course, a prevailing party is entitled to an award of costs. See Constantino v. American S/T Achilles, 580 F.2d 121, 123 (4th Cir.1978). Indeed, the rule gives rise to a "presumption that costs are to be awarded to the prevailing party." Cherry v. Champion Int'l Corp., 186 F.3d 442, 446 (4th Cir.1999) (citing Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981); Teague v. Bakker, 35 F.3d 978, 995-96 (4th Cir.1994)). Accordingly, it is incumbent upon the unsuccessful party to show circumstances sufficient to overcome the presumption favoring an award of costs to the prevailing party. 10 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2668 at 232 (3d ed.1998). Moreover, the United States Court of Appeals for the Fourth Circuit has stated that the district court "may not depart from the normal practice of awarding fees to the prevailing party [who has requested costs] without first articulating some good reason for doing so." Oak Hall Cap & Gown Co. v. Old Dominion Freight Line, Inc., 899 F.2d 291, 296 (4th Cir.1990); see Constantino, 580 F.2d at 123 (reversing the district court's denial of costs where the court stated no reason for its action). An award of costs should be entered if a listed expense is authorized by statute, and is reasonably necessary to the litigation. See Charter Medical Corp. v. Cardin, 127 F.R.D. 111, 113 (D.Md.1989). Those expenses which may be taxed are delineated in 28 U.S.C. § 1920 (2004).¹ While an award of costs to a prevailing party is usual, the inclusion of various items within that award rests with the sound discretion of the trial court. See Advance Bus. Sys. & Supply Co. v. SCM Corp., 287 F.Supp. 143, 162 (D.Md.1968), aff'd 415 F.2d 55 (4th Cir.1969) (recognizing that a trial court possesses broad discretionary powers in allowance or disallowance of costs); Flint v. Haynes, 651 F.2d 970, 973 (4th Cir.1981) (stating that Section 1920 enumerates the expenses that federal court may tax as a cost under the discretionary authority found in Rule 54(d)). With this standard in mind, the Court turns to an analysis of Plaintiffs' equitable arguments and the specific costs sought by Defendant.

A. Equitable Considerations

Plaintiffs first argue that granting Defendant's Bill of Costs would be inequitable for two reasons. First, Plaintiffs argue that because their claim was not frivolous, they should not be made to pay Defendant's costs. (Pl.'s Opp'n to Def.'s Bill of Costs at 2.) Second, they maintain that the disparity in the parties' economic power militates against awarding costs to Defendant. Id. These arguments are insufficient to deny an award of costs.

Plaintiffs assert that this Court should not tax the costs associated with this case because they pursued their rights in good faith. They argue that they had a reasonable basis for bringing their claim and that there was a genuine issue of material fact as to when they discovered or should have discovered Defendant's alleged misappropriation of trade secrets.² However, the good faith pursuit of rights, alone, does not provide sufficient basis to avoid the presumptive taxation of costs. Cherry, 186 F.3d at 447. The Fourth Circuit has stated that considering good faith as an independent basis for denial of costs "would `frustrate' the operation of Rule 54(d)(1) because the losing party in most cases has acted in good faith." Id.; accord In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 451 (3d Cir.2000) (agreeing that "good faith" is not a relevant factor); White & White, Inc. v. Am. Hosp. Supply Corp., 786 F.2d 728, 731 (6th Cir.1986) (stating that good faith is an insufficient basis for denying costs to a prevailing party); Nat'l Info. Services, Inc. v. TRW, Inc., 51 F.3d 1470, 1472-73 (9th Cir.1995) ("If the awarding of costs could be thwarted every time the unsuccessful party is a normal, average party and not a knave, Rule 54(d)(1) would have little substance remaining."); AeroTech., Inc. v. Estes, 110 F.3d 1523, 1527 (10th Cir.1997) (recognizing that all parties to a federal action have an obligation to act with proper purpose and thus, good faith is insufficient to permit the court to deny costs). Accordingly, Plaintiffs' good intentions alone do not entitle them to relief from the presumptive taxation of costs provided by Rule 54(d)(1). Cherry, 186 F.3d at 447.

Plaintiffs next argue that the relative economic disparity between themselves and Defendant, a subsidiary of a Fortune 500 company, makes taxing the costs associated with this litigation inequitable. (Pl.'s Opp'n to Def.'s Bill of Costs at 2.) The Fourth Circuit has plainly rejected this argument. Cherry, 186 F.3d at 448. Plaintiff cannot protest the taxation of costs solely on the basis that the prevailing Defendant enjoys significantly greater wealth. Id. In Cherry, the district court relied on the disparity between the parties' comparative economic power, among other things, to deny the defendant the costs ordinarily awarded to prevailing parties under Rule 54(d)(1). The Fourth Circuit reversed, finding that the district court exceeded its equitable discretion and undermined the "foundation of the legal system that justice is administered to all equally, regardless of wealth or status." Id. (citing Flint v. Haynes, 651 F.2d 970, 973 (4th Cir.1981)); see also Smith v. Southeastern Pa. Transp. Auth., 47 F.3d 97, 99 (3d Cir.1995) (per curiam) (holding that a district court could not base a decision to deny costs solely on the disparity of the parties' wealth); Reed v. Int'l Union of United Auto., Aerospace & Agric. Implement Workers, Local Union No. 663, 945 F.2d 198, 204 (7th Cir.1991) (recognizing that it is not enough for the losing litigant to establish good faith and a disparity between the parties' financial situations).

The non-prevailing party's inability to pay, however, may excuse taxation of costs. Cherry, 186 F.3d at 447 (acknowledging that costs may possibly be denied if the losing litigant is of sufficiently modest means). While Plaintiffs maintain that they are of "modest means", they have not asserted that it would be difficult or impossible for them to pay the costs delineated in Defendant's Bill of Costs. Id. In fact, no record has been established that would permit this Court to conclude that these Plaintiffs should be relieved of their duty to pay costs. Merely stating that one is of "modest means" is insufficient to overcome the presumption that the losing party must pay the prevailing party's costs. See Chapman v. Al Transp., 229 F.3d 1012, 1039 (11th Cir.2000) (noting that losing litigant's financial status is factor to be considered, but court must first require substantial documentation of true inability to pay costs); Briscoe v. City of Philadelphia, Civ.A. No. 95-1852, 1998 WL 52064, *2 (E.D.Pa. Jan. 28, 1998) (acknowledging that court may consider indigency but refusing to do so because plaintiff provided no documentation); McGuigan v. CAE Link Corp., 155 F.R.D. 31, 35 (N.D.N.Y.1994) (refusing to reduce costs because plaintiff did not adequately document inability to pay).

B. Specific Items In Defendant's Bill of Costs

Plaintiffs appear to make the following specific objections to the Bill of Costs: (1) Defendant's depositions were unnecessary or excessive; (2) Defendant's service of process and witness fees were unnecessary; and (3) Defendant's copying costs were excessive. The Court will address each of these points in turn.

1. Deposition Costs

Defendant seeks $4,494.27 associated with transcribing ten depositions.³ Under 28 U.S.C. § 1920(2), the costs of an original deposition taken by the prevailing party are recoverable if they are "necessarily obtained for use in the case." Cherry, 186 F.3d at 449 (citing Fogleman v. ARAMCO, 920 F.2d 278, 285 (5th Cir.1991)); see also Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir.1993) (stating that "[w]hether a deposition ... was necessarily obtained for use in the case is a factual determination to be made by the district court; we accord great latitude to this determination"). The costs associated with a deposition are commonly awarded "when the taking of the deposition is reasonably necessary at the time of its taking."...