Bohner v. Union Pac. R.R. Co.

Decision Date31 March 2022
Docket Number4:19-cv-02581-SEP
CourtU.S. District Court — Eastern District of Missouri


Before the Court is Defendant Union Pacific Railroad Company's Motion for Bill of Costs as the prevailing party in this suit. Doc. [54]. The Motion has been fully briefed. For the reasons set forth below, the Motion is granted in part and denied in part.


A final judgment was entered in favor of Defendant on August 3, 2021. Doc. [52]. Defendant filed a Motion for Bill of Costs on August 17, 2021. Doc. [54]. In its Motion, Defendant requests $10, 475.97 in total costs, consisting of $380 in fees for service of summons and subpoena, $9, 440.05 for fees for printed or electronically recorded transcripts obtained for use in the case, $40 for fees related to witnesses, and $615.92 for exemplification and the costs of making copies of materials necessary for use in the case. Id. at 1. Defendant attached to the Motion an itemization of the requested costs, Doc. [54-1], as well as three exhibits evidencing invoices and receipts for the expenses, Docs [52-2], [52-3], [52-4].

Plaintiff filed an objection, arguing that the fees charged were either not properly taxable under 28 U.S.C. § 1920 or were “extraordinarily high, ” such that recovery should not be permitted.[1] Doc. [55] at 1. Plaintiff contends that the Court should bar the award of costs to Defendant entirely or award only $3, 133.57-the costs Defendant would have incurred had it “acted prudently.” Id. at 1-2.

Legal Standard

Federal Rule of Civil Procedure 54(d) grants district courts “broad discretion” over the award of costs to prevailing parties. Little Rock Cardiology Clinic PA v Baptist Health, 591 F.3d 591, 601 (8th Cir. 2009). The costs that a federal court may tax under Rule 54(d) are enumerated in 28 U.S.C. § 1920. Crawford Fitting Co v. J.T. Gibbons, Inc., 482 U.S. 437, 440 (1987). 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.

28 U.S.C. § 1920. The Court may not award costs other than those authorized by § 1920 because the section “imposes rigid controls on cost-shifting in federal courts.” Cowden v. BNSF Ry. Co., 991 F.Supp.2d 1084, 1087 (E.D. Mo. 2014) (quoting Brisco-Wade v. Carnahan, 297 F.3d 781, 782 (8th Cir. 2002)) (cleaned up).

It is presumed that a prevailing party is entitled to costs. See Fed. R. Civ. P. 54(d); Bathke v. Casey's General Stores, Inc., 64 F.3d 340, 347 (8th Cir. 1995). “When an expense is taxable as a cost . . . there is a strong presumption that a prevailing party shall recover it in full measure.” Concord Boat Corp. v. Brunswick Corp., 309 F.3d 494, 498 (8th Cir. 2002) (internal quotation marks omitted) (quoting In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 462, 468 (3d Cir. 2000)). “The ‘losing party bears the burden of making the showing that an award is inequitable under the circumstances.' Id. The Court must carefully scrutinize the claimed costs and the support offered for them. Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 232-33, 235 (1964); Alexander v. National Farmers Org., 696 F.2d 1210, 1212 (8th Cir. 1982); Davis v. Parratt, 608 F.2d 717, 718 (8th Cir. 1979).


I. Defendant is entitled to some, but not all, of its costs.

A. The costs associated with the service of deposition subpoenas for Dr. Heider and Dr. Roeder are taxable.

Defendant seeks to tax Plaintiff $380 for fees associated with the deposition subpoenas for Dr. Heider and Dr. Roeder. Doc. [54-1] at 1. Plaintiff objects to those fees, arguing that they are both professionals, “who usually will waive service.” Doc. [55] at 10. As Defendant points out, however, the Court “allows the taxation of . . . fees for service of summons and subpoena.” Doc. [56] at 8 (quoting Koester v. Young Men's Christian Assn. of Greater St. Louis, 2017 WL 2929467, at *2 (E.D. Mo. July 7, 2017)). Even if professionals do typically waive service of process, Plaintiff provides no authority suggesting that they are required to; nor has he argued that such costs are not taxable. See Doc. [55] at 10. Accordingly, the $380 in fees for service of deposition subpoenas will be taxed against Plaintiff.

B. Dr. Lehman's deposition was not improper, and Plaintiff's consent to the deposition does not preclude Defendant from recovering costs.

Defendant seeks to tax Plaintiff $874.85 for the expenses associated with the deposition of Defendant's expert, Dr. Lehman.[2] Doc. [54-1] at 1. Plaintiff argues that the entirety of that cost should be not be taxed upon him because: (1) his attorney was not present at the deposition due to a “clerical error, ” and therefore it was improper for Defendant to proceed with the deposition and (2) because Plaintiff allowed Dr. Lehman to appear at trial via videotaped deposition at Defendant's request, he should only be bound to pay the $40 witness fee that could have been taxed against him if Dr. Lehman testified at trial.[3] Doc. [55] at 8.

The Court agrees with Defendant that Plaintiff's counsel's absence from the deposition does not preclude Defendant's recovery of its costs. By Plaintiff's own admission, he consented to Dr. Lehman testifying via a videotaped deposition. Docs. [55] at 8; [50] at 1. Although the parties disputed the admissibility of that deposition because of Plaintiff's failure to appear, see Doc. [50], that dispute has nothing to do with whether Defendant is entitled to recover costs of the agreed-upon deposition. And for the same reason, the Court is not persuaded that Plaintiff's consent to conduct the videotaped deposition-instead of having Dr. Lehman testify in person at trial-somehow negates Defendant's right to recover the costs of the deposition.

Plaintiff bears the burden to demonstrate that Defendant's recovery of costs is inequitable under the circumstances presented here. Concord Boat Corp., 309 F.3d at 498. The Court cannot find, especially in light of the strong presumption that Defendant, as the prevailing party should recover its costs, that taxing costs for an agreed-upon deposition would be inequitable.

C. Some of Defendant's other deposition-related expenses are taxable.

Defendant has sought costs for the depositions of 13 witnesses, totaling $9, 440.05. Doc. [54-1] at 2. Plaintiff objects to some of the expenses associated with the depositions of five individuals: Plaintiff; Defendant's expert witness, Dr. Kevin Trangle; Plaintiff's expert witness, Dr. Richard Lehman; and two of Plaintiff's medical providers, Dr. Allison Heider and Dr. Edwin Roeder. Doc. [55] at 2-10; Doc. [56] at 3. Specifically, Plaintiff argues that Defendant's court reporter charged an unreasonable rate and used “phantom fees, ” including court reporter attendance fees, archive fees, scanning of deposition exhibit fees, audio codes for remote attendance fees, and shipping and handling fees. Doc. [55] at 2-10.

1. The transcription fees are taxed against Plaintiff in part.

Defendant seeks to tax Plaintiff the costs of the five deposition transcripts, totaling $2, 915.75.[4] See Doc. [55]. Plaintiff argues that the deposition transcripts cost anywhere from $1 to $2.35 more per page than the maximum rate set by the Judicial Conference of the United States, $3.65. See Id. As such, Plaintiff argues that the costs of the deposition transcripts are unreasonable and cannot be imposed on him in full. See Id. Defendant contends that Plaintiff fails to cite any legal authority that requires parties to use court reporters that have the same rate as those established by the Judicial Conference of the United States or the same rates charged by Plaintiff's court reporter. Doc. [56] at 3. Defendant also notes that the costs incurred also include an additional certified copy of the deposition transcripts, for which the maximum rate set by the Judicial Conference of the United States is $4.55. Id. at 3, n.1.

Here, however, the challenged depositions involve much higher price per page transcription rates than the Court typically finds to be reasonable. Burdess v. Cottrell, Inc., 2022 WL 888135, at *2 (E.D. Mo. Mar. 25, 2022) (Courts in this district have routinely found transcript fees in the range of $3.00 to $4.00 per page to be reasonable.”). Indeed, costs charged per-page were $8.05 with respect to Dr. Lehman's; $5.30 as to Dr. Roeder's and Dr. Heider's, $6.00 as to Dr. Trangle's; and $4.65 for Plaintiff's. Doc. [54-3] at 2, 6, 7, 14, 15. Defendant offers no explanation for the relatively high transcription costs associated with these depositions. Accordingly, in its discretion, the Court will reduce Defendants' transcription fees by half and assess $1, 457.88 against Plaintiff. Hoover v. Bayer Healthcare Pharm. Inc., 2017 WL 2321146, at *4 (E.D. Mo. Mar. 27, 2017) ([I]t is within the sound discretion of the trial court to grant, modify or deny requests for taxation of costs.”); see Burdess, 2022 WL 888135, at *3 (reducing fees by half because the defendant did not explain the unreasonable and above-market transcription prices).

2. The court-reporter attendance fees are taxable costs.

Plaintiff contends that Defendant's chosen court-reporting...

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