In re Complaint of Ensco Offshore Co.

• Decision Date: 16 February 2017
• Docket Number: CIV. A. NO. H-09-2838
• Parties: In the Matter of the Complaint of ENSCO Offshore Company, as Owner of the modu ENSCO 74 for Exoneration from or Limitation of Liability
• Court: U.S. District Court — Southern District of Texas

In the Matter of the Complaint of ENSCO Offshore Company, as Owner of the modu ENSCO 74 for Exoneration from or Limitation of Liability

CIV. A. NO. H-09-2838

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

February 16, 2017

OPINION AND ORDER

Pending before the Court in the above referenced exoneration from or limitation of liability action, pursuant to 46 U.S.C. § 30501, et seq., civil and maritime, in which the Fifth Circuit has affirmed this Court's final judgment, including an award of taxable costs, in favor of ENSCO Offshore Company ("ENSCO") against Claimants SKS OBO & Tankers AS and Kristian Gerhard Jebsen Skipsrederi AS (collectively, "KGJS"), are the following: (1) ENSCO's bill of costs seeking $263,988.90 (#191; ENSCO's supplemental memorandum #196 (supporting invoices and information for claimed costs and additional costs for transcripts not included in the original bill); and supplement #201 (requesting $104.50 for copies at $.15 per page on appeal)); (2) KGJS's objections (#192) to amounts claimed in ENSCO's original bill of costs; (3) KGJS's objections (#197) to #196; and (4) KGJS's response (#204) to #201.

Standard of Review

Under Federal Rule of Civil Procedure 54(d)(1), "'[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.'" Baisden v. I'm Ready Productions, Inc., 793 F. Supp. 2d 970, 973 (S.D. Tex. 2011), citing Pacheco v. Mineta, 448 F.3d 783, 793 (5^th Cir.), cert. denied, 549 U.S. 888 (2006). Taxation under Rule 54(d) is subject to the court's discretion, but the rule "'contains a strong presumption that the prevailing party will be awarded costs.'" Id., citing id. Nevertheless courts have held that a court must state a good reason for denying or reducing a prevailing party's request for costs. Id., citing id. To determine who is the prevailing party the court must view the case as a whole; " party need not prevail on every issue in order the be entitled to costs." Fogelman v. ARAMCO, 920 F.2d 278, 285 (5^th Cir. 1991).

The court may only tax costs for items listed in 28 U.S.C. § 1920. Id., citing id. Title 28 U.S.C. § 1920 ("Taxation of Costs"), as amended in 2008, provides,

A judge or clerk of any court of the United States may tax as costs the following:

(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 case¹;(5) Docket fees under section 1923 of this title; and

(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.

"[E]xpenses that are not authorized by statute must be borne by the party incurring them." Baisden, 793 F. Supp. 2d at 973. The "'district court may decline to award costs listed in the statute but may not award costs omitted from the list.'" Id., quoting Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5^th Cir. 1993), cert. denied, 510 U.S. 1195 (1994). When the opposing party raises objections to the costs sought, the costs seeker "bears the burden of verifying that the costs were necessarily incurred in the case rather than just spent in preparation and litigation of the case." Baisden, 793 F. Supp. 2d at 973, citing Fogelman v. ARAMCO, 920 F.2d 278, 286 (5^th Cir. 1991).

Title 28 U.S.C. § 1821, in conjunction with 28 U.S.C. § 1920(3), governs necessary expenses for witnesses who appear at deposition and or trial, including fees, travel expenses, and lodging.² Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5^th Cir. 1994); Baisden, 793 F. Supp. 2d at 979. "28 U.S.C. § 1821(d)(2)does not . . . permit the [subsistence] award of 'actual costs,' but limits such awards to the per diem rate.'" Baisden, 793 F. Supp. 2d at 980, citing United Teacher Associates Insurance Co. v. Union Labor life Insurance Co., 414 F.3d 558, 575 & n.12 (5^th Cir. 2005).

ENSCO's Bill of Costs (#191 and 196)

ENSCO's bill of costs, supported by an affidavit from counsel Lawrence R. Marcay, III, and supplemented by #196, requested the following:

Fees of the Clerk ............... $350.00³

Fees for service of summons and subpoena . . . $4,892.30⁴

Fees for printed or electronically recorded transcripts necessarily obtained for use in the case . . $62,145.89⁵Fees and disbursements for printing ..... $3,397.68⁶

Fees for witnesses ............. $30,711.52⁷

Fees for exemplification and costs of making copies of any materials where the copies are necessarily obtained for use in the case ............. $71,518.28⁸

Other costs ................ $95,527.23

ENSCO's Supplemental Bill of Costs ...... $184.50⁹

TOTAL ................... $264,173.40¹⁰

Counsel's affidavit states that the additional "other costs" (listed on Exhibit E) are costs "that equity mandates be taxable in this matter," including $75,752 for the Bond for Stipulation of Value, which was recorded with the Court's Clerk, and $19,775.23 intravel costs relating to attending a vessel inspection and crew depositions in Turkey and two trips to Norway to attend the 30B(6) deposition of a claimant.

KGSJ's Objections

Because in #196 ENSCO has satisfied a number of KGSJ's objections to the absence of evidence to support its claims of cost, the Court will not address those challenges.

KGJS first objects to ENSCO's effort to recover (1) bond premiums, publishing costs and attorney travel costs; (2) fees paid to private process servers; (3) deposition costs without any showing that such depositions were necessarily obtained in preparation for this case; (4) alternatively, for excessive deposition costs beyond the claims of KGJS; (5) excessive costs for copying documents; (6) excessive witness costs associated with lodging per diems and unsupported air fare reimbursements; (7) witness costs in connection with the presence of ENSCO's corporate representative; and (8) witness costs claimed for witnesses who did not actually testify at trial.

"The great weight of authority establishes that because bond premiums are not listed in [§ 1920], they are unrecoverable as costs." Oldendorff Carriers GmbH & Co. KG v. Grand China Shipping (Hong Kong) Co. Ltd., Civ. A. No. 2:12-CV-74, 2013 WL 5424956, at *2 (S.D. Tex. Sept. 26, 2013). Therefore, argues KGJS, ENSCO's claim for $75,752.00 for bond premiums paid for a "Bond forStipulation of Value," should not be allowed.¹¹

KGJS also objects to ENSCO's request to recover $19,775.23 in "other costs" relating to travel and lodging of its attorneys for three international trips for depositions and vessel inspections, as well as to $3,397.68 for costs publishing the Legal Notice of the Limitation Action because such an expense is outside the reach of § 1920.

Similarly KGJS maintains that fees of $4,892.30 for private process servers are not recoverable under the statute "absent exceptional circumstances." Marmillion v. Am. Int'l Ins. Co., 381 Fed. Appx. 421, 431 (5^th Cir. 2010)(per curiam).

KGJS objects to ENSCO's request for deposition transcript costs because it has failed to show that any of the transcripts for which it seeks recovery were necessary to the case, a number of which claimed costs that were excessive, while forty-nine deposition transcripts had no bearing on the trial of KGJS's claims and KGJS did not attend them. It argues that counsel's supporting affidavit was merely insufficient, bare support as it does not establish that the costs were necessary, or why the costs ofwitnesses in Turkey and Norway were so expensive. KGJS asserts that four of the transcripts related to the claims of four other pipeline claimants (Sea Robin Pipeline Company, LLC, Stingray Pipeline Company, LLC, Tennessee Gas Pipeline Company, and High Island Offshore System, LLC), whose claims were settled before trial and thus they were not necessarily obtained in preparation for litigation of this case. Furthermore ENSCO's trial witness list does not include any of the names KGJS lists as irrelevant (Jeffrey Molinaro, Gregory Watkins, Richard Reggio, James Messman, Sean Meehan, Georgy Loy, Stuart Babin, Paul Clayton, Jerry Rau, George Vandervoort, Robert Francini, Lee Swanger, Gerhardus Koch, and Joseph Sowell) to the trial of KGJS's claims.

KGJS further objects that ENSCO has provided only a conclusory assertion that the $75,518.28 in costs for copies was necessary for this case. Claiming 10 cents per page, ENSCO asks to recover costs for copies of approximately 755,183 pages, a sum which KGJS argues is an exorbitant amount for this case. KGJS also complains that ENSCO made no effort to separate copying costs for KGJS's claims from those of the other four claimants. Thus KGJS asks the Court to disallow or reduce ENSCO's excessive copying costs.

In addition, argues KGJS, ENSCO's claimed costs for witnesses, including fees and travel costs, exceed maximum per diem rates. 28 U.S.C. § 1821(d) provides in relevant part,

A subsistence allowance for a witness shall be paid in an amount not to exceed the maximum per diem allowance bythe Administrator of General Services, pursuant to section 5702(a) of title 5, for official travel in the area of attendance by employees of the Federal Government.

It is an abuse of discretion for a district court to award subsistence costs for more than the per diem rate authorized by § 1828(d)(2). United Teacher, 414 F.3d at 575. Federal per diem rates are maintained by the General Services Administrator at http://www.gsa.gov.perdiem. Baisden, 793 F. Supp. 2d at 980 n.28. For fiscal year 2014, the maximum lodging rate for Houston was $118.00 per night. www.gsa.gov/portal/category/100120. Section 1821(c) establishes the standard for maximum allowable rates for travel expenses:

A witness who travels by common carrier

...