Bumpers v. Austal United Statesa

• Decision Date: 05 November 2015
• Docket Number: CIVIL ACTION 08-00155-KD-N
• Parties: CYNTHIA BUMPERS, Administrator Ad Litem for the Estate of Nelson Bumpers, et al., Plaintiffs, v. AUSTAL U.S.A., L.L.C, Defendant.
• Court: U.S. District Court — Southern District of Alabama

CYNTHIA BUMPERS, Administrator Ad Litem for the Estate of Nelson Bumpers, et al., Plaintiffs, v. AUSTAL U.S.A., L.L.C, Defendant.

CIVIL ACTION 08-00155-KD-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

November 5, 2015

ORDER

This matter is before the Court on Defendant's Bill of Costs (Doc. 951), Plaintiffs' Objection (Doc. 951), Costs Taxed by the Clerk (Doc. 961), Defendant's Motion to Retax Costs (Doc. 962) and Plaintiffs' response in opposition (Doc. 964).

I. Background & Applicable Law

On April 3, 2015, Judgment was entered as to the remaining Plaintiffs' claims, in favor of Austal. (Doc. 950). On April 16, 2015, Austal filed a Bill of Costs seeking to recover $63,744.79 ($50.00 for Clerk fees (Pro Hac Vice admissions); $518.21 for summons/subpoena fees; $37,585.65 for copies of transcripts necessarily obtained for use in the case; $10,614.68 for printing; $1,272.45 for witness fees/mileage/meals/lodging; $177.50 for exemplification and copies of materials necessarily obtained for use in the case; and $13,526.30 in "other" costs (mediation, production of emails, expert related documents, and travel expenses for counsel)). (Doc. 951-1). Plaintiffs filed an objection. (Doc. 951). On August 7, 2015, $6,190.70 in costs were taxed by the Clerk in Austal's favor (comprised of $4,978.25 for transcripts necessarily obtained for use in the case and $1,212.45 for witness fees). (Doc. 961). On August 17, 2015, Austal moved to retax costs, seeking recovery of $63,744.79. (Doc. 962).

Austal is the prevailing party in this case. "In the exercise of sound discretion, trial courts are accorded great latitude in ascertaining taxable costs." Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519, 1526 (11^th Cir. 1985). A court's power to award costs to a prevailing party is grounded in part in Rule 54(d)(1) of the Federal Rules of Civil Procedure which provides: "[u]nless a federal statute, these rules, or a court order provides otherwise, costs--other than attorney's fees--should be allowed to the prevailing party." Thus, absent explicit statutory authorization, federal courts are limited to those costs enumerated in 28 U.S.C. § 1920. Crawford Fitting Co. v. J.T. Gibbins, Inc., 482 U.S. 437, 445 (1987).

Specifically, the following may be taxed as costs:

(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.

At first blush, there may appear to be such explicit statutory authorization for recovery of non-taxable costs in this case. Austal is a prevailing party in a Section 1981/Title VII action through which a court may award costs incurred in defending the case even when not expressly listed in Section 1920. See, e.g., Gay v. Airtrain Airways, Inc., 427 Fed. Appx. 743, 744 (11^th Cir. 2011). That said, as Plaintiffs have highlighted, this Court has already ruled, in its discretion, that Austal is not entitled to recovery of such costs: "...this case is simply not anappropriate case to award...nontaxable expenses to Austal based on frivolity. While Austal was ultimately successful with regard to all of the plaintiffs' claims, it was not because Austal had an airtight defense with settled law and facts securely on its side." (Doc. 749). This ruling was affirmed by the Eleventh Circuit. (Doc. 810). That portion of Austal's motion asserting that "statutory authorization" exists to recover non-taxable expenses essentially ignores the rulings of this Court and that of the Eleventh Circuit. Nonetheless, that portion of Austal's motion to retax premised on "statutory authorization" is DENIED in its entirety.

II. Discussion

A. Pro Hac Vice

Austal requests $50.00 for the Pro Hac Vice admissions of two (2) attorneys. (Doc. 951-3). Pro Hac Vice fees are an expense of counsel, not recoverable under section 1920. Lane v. Accredited Collection Agency, Inc., 2014 WL 1685677, *9 (M.D. Fla. Apr. 28, 2014); Covington v. Arizona Bev. Co., LLC, 2011 WL 810592, *3 (S.D. Fla. Jan. 25, 2011) (citing Exhibit Icons, LLC v. XP Cos., LLC, 2009 WL 3877667, *1 (S.D. Fla. Nov. 18, 2009) (citing Eagle Ins. Co. v. Johnson, 982 F. Supp. 1456, 1459-1460 (M.D. Ala. 1997), aff'd, 162 F.3d 98 (11^th Cir. 1998)). Thus, Austal's request is DENIED.

B. Videography

Austal requests $5,993.35 for videotaping/video-synching (non-stenographic) costs for certain depositions ($625 Myron Barnes, $148.75 Myron Barnes, $710 Nelson Bumpers, $832.25 Frederick Carter, $157.50 Frederick Carter, $530 Nathaniel Reed, $755 Charles Stills,$2,234.85 Jeff O'Dell). (Doc. 951-5 at 5-6, 8, 10-11, 23, 44-45).¹ Austal seeks these costs in addition to recovery of the costs for the deposition transcripts by stenographic means.

Rule 30(b)(3) provides as follows:

(3) Method of Recording.

(A)Method Stated in the Notice. The party who notices the deposition must state in the notice the method for recording the testimony. Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition.

(B)Additional Method. With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise.

Fed.R.Civ.P. 30(b)(3)(A)-(B). When a party notices a deposition to be recorded by: 1) non-stenographic means, or 2) by both stenographic and non-stenographic means, and no objection is raised at that time by the other party as to the method of recordation, it is appropriate to award the cost of conducting the deposition in the manner noticed. Morrison v. Reichhold Chem., Inc., 97 F.3d 460, 464-465 (11^th Cir. 1996) (deposition noticed as only videotape); Preis v. Lexington Ins. Co., 2007 WL 3120268, *3 (S.D. Ala. Oct. 22, 2007) (depositions noticed as both videotape and stenographic). If videotaped, the prevailing party must explain why it was necessary to obtain a videotape of the deposition in question. Morrison, 97 F.3d at 464-465. If the deposition notice does not state the method of recordation, and if there is no evidence that the party noticed a deposition to be videotaped instead of transcribed, the prevailing party may only recover costs for the stenographic transcript. Caribbean I Owners' Ass'n, Inc. v. Great Am. Ins. Co. of N.Y., 2009 WL 2150903, *6 (S.D. Ala. Jul. 13, 2009).

With its pending motion, Austal did not submit the deposition notices for consideration. However, according to Plaintiffs,² Austal noticed the depositions to be recorded via videotape or stenographer -- not videotaped and transcribed by a stenographer. (Doc. 964 at 3). Austal's notice was apparently in the alternative - either by video or by stenographer. Austal's notice of recordation method was thus neither 1) by non-stenographic means, nor 2) by both stenographic and non-stenographic means. Moreover, Austal has failed to sufficiently explain why it was necessary to obtain videos of the depositions in addition to stenographic transcripts, stating only summarily that "several of the video depositions of the Plaintiffs or other key witnesses were used at trial." (Doc. 962 at 7 at n.6). Accordingly, Austal's request is DENIED.

C. Transcripts

Austal requests $37,585.65 for trial and deposition transcripts of the 23 plaintiffs and members of its Human Resources Department and management. (Docs. 951-2 at 1-3; 962 at 5-7). Of these costs, $4,978.25 in deposition transcripts were previously taxed as recoverable.

1. Trial Transcripts

Austal requests $5,297.80 for trial transcripts,³ asserting that these costs were incurred to prepare for a successful cross-examination of witnesses who testified in one trial and then testified in subsequent bifurcated trials:

...the expenses Austal incurred to obtain portions of the trial transcripts were necessary because the trials were severed and scheduled over a 2½ year period. All of the Plaintiffs who testified in Trial I were identified as witnesses in Trials II-V. Austal could not effectively prepare its cross-examination of these witnesses without the benefit of their prior trial testimony. Indeed, as an example, in Trial I, the jury was unable to reach a verdict with respect to the claims of Plaintiffs Adams, Barnes, and Johnson. (Docs. 515-1, 515-2, 515-5.) Their claims were tried again in Trial III, which commenced several months later. (Doc. 560 at 2). Obtaining their prior trial testimony was crucial for Austal to successfully cross-examine these Plaintiffs in their subsequent trials. (See, e.g., Doc 803 at 160 (impeaching Adams in Trial III with prior trial testimony from Trial I; see also Doc. 803 at 235 (publishing transcript of Johnson tape recording to jury).)...

(Doc. 962 at 7).

The cost of trial transcripts may be recovered when such transcripts are necessarily obtained for use in the case. 28 U.S.C. § 1920(2). "Trial transcription costs may also be taxable...but again only if truly necessary for presentation of the case at trial, and not solely for convenience of counsel[]"...This determination is made "on a case-by-case basis..." Crouch v. Teledyne Cont. Motors, Inc., 2013 WL 203408, *4 (S.D. Ala. Jan. 17, 2013). "[W]hile the cost of daily trial transcripts should not be allowed as a matter of course, a district court may award the cost of daily trial transcript where the length and complexity of a trial make the...