Hill v. BASF Wyandotte Corp., Civ. No. 9-74125.

Citation547 F. Supp. 348
Decision Date30 June 1982
Docket NumberCiv. No. 9-74125.
PartiesDianne HILL, Plaintiff, v. BASF WYANDOTTE CORP., Defendant.
CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)

COPYRIGHT MATERIAL OMITTED

Lawrence C. Patrick, Jr., and Adam A. Shakoor, Detroit, Mich., for plaintiff.

Ronald M. Green, New York City, and Bennie L. Grier, Detroit, Mich., for defendant.

MEMORANDUM OPINION

RALPH M. FREEMAN, District Judge.

After a nine day bench trial, judgment was entered against the plaintiff in this civil rights action on October 23, 1981. This matter is now before the Court on defendant's motions for attorney fees and for review of the denial of certain costs by the Clerk.

Plaintiff claimed that her employer discriminated against her during the course of her employment because of her race and sex, finally discharging her in retaliation for her complaints about defendant's discriminatory acts. Specifically, plaintiff claimed that she was put on probation and discharged because she refused to acquiesce to the sexual overtures of her supervisor, Reginald Ferrell. She also claimed that she was discriminated against on the basis of her sex because Donna Stacey, her secretary, provided services to a male employee that she did not provide to plaintiff. She claimed that Donna Stacey gave secretarial assistance to a white male that she would not provide to plaintiff. Plaintiff claimed that she was assigned to recruit black employees while white recruiters recruited both black and white employees. She further asserted she was put on probation because she would not participate in the Minority Recruitment Task Force. Finally, plaintiff alleged that she was discharged in retaliation for filing race and sex discrimination charges with the EEOC and for protesting to her employer about her discriminatory treatment.

A. Costs

On November 20, 1981, defendant filed a bill of costs with the Clerk of this Court. Plaintiff filed no objections. On January 19, 1982, the Clerk taxed costs in the amount of $1,315.90 for witness fees. The Clerk disallowed costs for pretrial discovery depositions because no explanation had been given for the necessity of expedited service or for the copies made and also disallowed costs for an expedited daily trial transcript. Defendant now seeks to recover such costs in the amount of $5,014.02. Plaintiff asserts that all costs should be denied because her claims were not frivolous, unreasonable or without foundation as required by Christianburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). This argument is without merit, as the Christianburg standard applies only to awarding attorney fees. Northcross v. Board of Education of Memphis, 611 F.2d 624, 639-40 (6th Cir. 1979). Costs are allowed "as of course to the prevailing party unless the court otherwise directs" by virtue of Fed.R.Civ.P. 54(d). Costs were included in the judgment of this Court against plaintiff. Allowable costs are set out in 28 U.S.C. § 1920.

Allowance of costs is within the sound discretion of the district judge. Farmer v. Arabian American Oil Co., 379 U.S. 227, 232-33, 85 S.Ct. 411, 415, 13 L.Ed.2d 248 (1964); Northcross v. Board of Education of Memphis, supra 611 F.2d at 640. However, this discretion is to be cautiously exercised so that the costs of litigation will not be made so high that litigants will be discouraged from bringing meritorious lawsuits. As the Supreme Court noted in Farmer v. Arabian American Oil Co., supra 379 U.S. at 235, 85 S.Ct. at 416:

We do not read Rule 54(d) as giving district judges unrestrained discretion to tax costs to reimburse a winning litigant for every expense he has seen fit to incur in the conduct of his case. Items proposed by winning parties as costs should always be given careful scrutiny. Any other practice would be too great a movement in the direction of some systems of jurisprudence, that are willing, if not indeed anxious, to allow litigation costs so high as to discourage litigants from bringing lawsuits, no matter how meritorious they might in good faith believe their claims to be. Therefore, the discretion given district judges to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute. Such a restrained administration of the Rule is in harmony with our national policy of reducing insofar as possible the burdensome cost of litigation.

Section 1920 permits recovery of:

(2) Fees of the court reporter for all or any part of the transcript necessarily obtained for use in this case;
. . . . .
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case.

As is clear from the very words of the statute, the cost of only those transcripts necessary to properly present a party's case are allowable.

1. Depositions

The costs of depositions may not be taxed when obtained for the purposes of investigation or preparation for trial. 6 Moore's Federal Practice ¶ 954.774 at 1723; 10 Wright & Miller, Federal Practice & Procedure § 2676. The distinction between depositions necessary for use in the case and those obtained merely for an investigatory purpose is a fine one. This Court previously discussed this problem in the case of Kaiser Industries Corp. v. McLouth Steel Corp., 50 F.R.D. 5 (E.D.Mich. 1970), where it was noted that:

It is necessary to distinguish between depositions which are reasonably necessary to properly present a party's case and depositions used essentially for the purpose of investigation or the kindred purpose of thorough preparation by counsel. Investigation expenses are not chargeable as costs. It is presumably in order to effectuate this distinction that many courts have adopted the practice of permitting taxation of deposition costs such as stenographers' fees for depositions introduced at trial or used in cross-examination of witnesses and disallowing the costs of all other depositions.

Id. at 12. Some courts, however, award the costs of depositions that were reasonably necessary when taken, even if not later used at trial. See, e.g., Electronic Specialty Co. v. International Controls Corp., 47 F.R.D. 158, 162 (S.D.N.Y.1969); 10 Wright & Miller, Federal Practice & Procedure § 2676. Courts also have refused to award costs of copies of depositions when the original of the deposition is timely filed and available for use. Electronic Specialty Co. v. International Controls Co., supra at 162-63; Oscar Gruss & Son v. Lumberman's Mutual Casualty Co., 46 F.R.D. 635, 641 (S.D.N.Y.1969).

a. April 14, 1980 Deposition of Plaintiff

Defendant requests $36.62 for the costs incurred when plaintiff did not appear for a scheduled deposition. Defendant used the transcript of the cancelled deposition in a motion to compel plaintiff's deposition, filed June 18, 1980. The court deems these costs as reasonably necessary, especially as they were incurred as the result of plaintiff's own lack of cooperation.

b. July 30, 1980 Deposition of Plaintiff

Defendant seeks $479.57 in costs for the preparation of an expedited transcript of a deposition of plaintiff. Defendant claims an expedited transcript was necessary to prepare a motion to compel plaintiff to answer deposition questions. Such a motion was filed on August 19, 1980. On October 1, 1980, at a hearing on the motion, defendant was ordered to file an amended motion, setting out the specific questions defendant claimed plaintiff failed to answer. Such a motion was filed on October 8, 1981. On October 21, 1980 the Court agreed with defendant's characterization of plaintiff's conduct as unresponsive and uncooperative, and ordered plaintiff to answer deposition questions posed. At that time the Court awarded defendant $150 in costs.

Defendant has not shown that plaintiff's July 30 deposition was used at trial. Defendant has already been awarded costs in connection with this deposition. The Court is not convinced of the need for an expedited transcript of the entire deposition, since only portions of the transcript were relied on by defendant in its motion to compel answers, and even those portions were not brought to the attention of the Court until October 8. Therefore, these costs will be refused.

c. Copies of March 17, 1980 and July 30, 1980 Deposition Transcripts

Defendant seeks costs of $88.86 for copies of depositions of plaintiff for local counsel. These costs will not be allowed. The originals of these depositions should have been filed with this Court and available for local counsel's perusal. Defendant has made no showing that the depositions were not so available to local counsel. These duplication costs were not necessary and will not be allowed.

d. November 4, 1980 Deposition of Plaintiff

Defendant seeks $315.17 for costs of an expedited transcript of a deposition of plaintiff taken to prepare requests for production of documents within the discovery cutoff and for use in preparation for trial. Certainly the premium for an expedited transcript was solely for the convenience of counsel to meet a discovery deadline and will not be allowed. Furthermore, defendant has not shown that this transcript was used at trial, merely that it was taken to prepare for trial. As such, it appears to have been taken for an investigative purpose and the costs of its transcription will therefore be denied.

e. Depositions of Ferrell and Tremonti

Ferrell and Tremonti were two of defendant's witnesses who testified at trial. Defendant seeks costs of $379.40 incurred in taking their depositions to prepare its defense. These depositions were not used by defendant at trial. The Court concludes they were taken for investigatory purposes and therefore will not allow such costs.

2. Trial Transcript

As is the case with depositions, the cost of trial transcript is not allowed if procured primarily for the convenience of counsel. Kenyon v. Automatic Instrument Co., 10 F.R.D. 248 (W.D.Mich.1950) aff'd 186 F.2d 752 (6th Cir. 1951). If the transcript is...

To continue reading

Request your trial
18 cases
  • Gilyard v. South Carolina Dept. of Youth Services, Civ. A. No. 3:84-992-15.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 5, 1985
    ...(D.N.J.1983). See also Harris v. Plastics Manufacturing Co., 617 F.2d 438 (5th Cir.1980) ("no evidence" adduced); Hill v. BASF Wyandotte Corp., 547 F.Supp. 348, (E.D.Mich.1982) ("no proof"); Spence v. Eastern Airlines, Inc., 547 F.Supp. 204 (S.D.N.Y.1982) (claim "devoid of any evidential su......
  • Knop v. Johnson, File No. G84-651.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • April 5, 1989
    ...U.S. at 233, 85 S.Ct. at 415; National Bancard Corp. v. VISA, U.S.A.. Inc., 112 F.R.D. 62, 64 (S.D.Fla.1986); Hill v. BASF Wyandotte Corp., 547 F.Supp. 348, 352 (E.D.Mich.1982). In this case, I find that it is appropriate to tax costs associated with obtaining a trial transcript. The trial ......
  • Brown v. Fairleigh Dickinson University, Civ. No. 81-735.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 15, 1983
    ...1345, 1351 (E.D.Mich.1982) ("no basis in fact" for claim of discrimination against ten individual defendants); Hill v. BASF Wyandotte Corp., 547 F.Supp. 348, 354 (E.D.Mich.1982) (plaintiff produced no proof of race and sex discrimination claims); Spence v. Eastern Airlines, Inc., 547 F.Supp......
  • LeBeau v. Libbey-Owens-Ford Co., LIBBEY-OWENS-FORD
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 7, 1987
    ...Authority of New York & New Jersey, 550 F.Supp. 222 (S.D.N.Y.1982) (finding suit frivolous after 6-day trial); Hill v. BASF Wyandotte Corp., 547 F.Supp. 348 (E.D.Mich.1982) (finding suit frivolous after 9-day bench trial); Colucci v. New York Times Co., 533 F.Supp. 1011 (S.D.N.Y.1982) (find......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT