Opinion
Civil Action No. 5:01-CV-289-C
May 27, 2003
ORDER
On this date the Court considered Plaintiffs' (DMTPHA) Motion to Review Clerk's Taxation of Costs and Brief in Support filed April 25, 2003, by Davis Mountains Trans-Pecos Heritage Association, et al. ("Plaintiffs"). Defendants' Response to DMTPHA Plaintiffs' Motion to Review Clerk's Taxation of Costs and Brief in Support was filed May 13, 2003, by the United States Air Force, et al. ("Defendants"). After considering all the relevant arguments and evidence, this Court GRANTS, to the extent set forth below, Plaintiffs' (DMTPHA) Motion to Review Clerk's Taxation of Costs.
DISCUSSION
Defendants submitted to the Clerk of this Court a Bill of Costs in the amount of $13,577, which was taxed against Plaintiffs as and for (1) $20 for docket fees pursuant to 28 U.S.C. § 1923 ("§ 1923"); (2) $1,250 for mounting of exhibits used at oral arguments; and (3) $12,307 for production and copies of the Administrative Record ("AR").
Plaintiffs object to Defendants' request for recovery of (1) the cost of the exhibits used at oral argument as being duplicative of available materials and excessively expensive and (2) the costs associated with the "preparation and copies" of the AR.
"[C]osts other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." FED. R. Civ. P. 54(d). The parties do not dispute that Defendants were the prevailing parties in this matter.
Those items allowed as taxable expenses are listed by statute as follows:
§ 1920. Taxation of costs
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 of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers 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.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.28 U.S.C. § 1920 (1994) ("§ 1920").
It is well established that a court may decline to award the costs listed in [§ 1920] but may not award costs omitted from the list. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987); Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993). Absent explicit statutory or contractual authorization, federal courts are bound by the limitations set out in § 1920. Crawford Fitting Co. 482 U.S. at 445. "Items proposed by winning parties as costs should always be given careful scrutiny." La. Power Light Co. v. Kellstrom, 50 F.3d 319, 335 (5th Cir. 1995).
First. Plaintiffs do not object to taxation of the § 1923 docket fees. Therefore, this Court finds that $20 as and for docket fees pursuant to § 1923 shall be taxed against Plaintiffs. See § 1920(5).
Second. Defendants have withdrawn their Bill of Costs for the exhibits used at oral arguments. Therefore, this Court finds that Defendants' Bill of Costs for $1,250 as and for one-half the cost of mounting the exhibits used at oral arguments shall be disallowed.
Third. This Court finds that the rest and remainder of Defendants' Bill of Costs, which seeks $12,307 for one-half the cost of "production and copies" of the AR, shall be disallowed in its entirety. Although this Court is fully cognizant that "there is a strong presumption that the prevailing party will be awarded costs," Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985), the prevailing party "must demonstrate some nexus between the costs incurred and the litigation." Fogelman v. Aramco, 920 F.2d 278, 286 (5th Cir. 1991).
Here, Defendants' Brief in Support of Costs summarily states that Defendants were "charged the following amounts by The Environmental Company for the administrative record . . . $12,307." Defendants' Brief in Support of Costs also claims that "[a]n itemized Bill of Costs is attached hereto."
This Court, however, finds that Defendants' Bill of Costs, which lists a lump sum amount of $13,557 as and for "fees for exemplification and copies," is anything but itemized. Defendants, inter alia, offered no itemized breakdown of the individual costs which made up the $13,557 costs incurred, provided no allocation of the "preparation" costs vis-à-vis "copies" costs to Plaintiffs alone or as between Plaintiffs in the instant matter and plaintiffs in the Welch companion case, and provided no documentation supporting a reasonable per page cost for copying. Finally, Defendants failed to heed the "SPECIAL NOTE: Attach to your bill an itemization and documentation for requested costs in all categories" conspicuously set forth on the Clerk's Bill of Costs form.
While this Court does not expect a prevailing party to identify every copy made for use in the case, this Court does require a sufficient demonstration that the fees for exemplification and copies of papers were reasonable and "necessarily obtained for use in the case" and not for the convenience, preparation, research, or records of Defendants' counsel. See Fogelman, 920 F.2d at 286; Grady v. Bunzl Packaging Supply Co., 161 F.R.D. 477, 479 (N.D. Ga. 1995). Moreover, conclusory assertions, without any verification, are insufficient to establish that copying expenses are properly recoverable. Goluba v. Brunswick Corp., 139 F.R.D. 652, 655 (E.D. Wis. 1991). Finally, undocumented claims for exemplification and copies of papers must be disallowed. Zapata Gulf Marine Corp. v. P.R. Maritime Shipping Auth, 133 F.R.D. 481, 484 (E.D. La. 1990).
Because Defendants failed to substantiate that the fees for exemplification and copies of papers were reasonable and necessarily resulted from the instant litigation and failed to include in Defendants' Bill of Costs documentation for this Court to determine same, Defendants' Bill of Costs in the amount of $12,307 must be disallowed. See Interstate Contracting Corp. v. City of Dallas, No. 3:98-CV-2913-M, 2002 U.S. Dist LEXIS 1496, *15 (N.D. Tex. Jan. 31, 2002) (Boyle, M.J.) (disallowing entire $23,532.34 photocopying costs because prevailing party did not meet burden to show necessity, did not attempt to group costs into categories of documents, and did not categorize copies so that court could reasonably decipher which copies were necessary and which were not) (citing Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994) and Fogelman, 920 F.2d at 286).
CONCLUSION
Having considered all the relevant arguments and evidence, this Court GRANTS, to the extent set forth below, Plaintiffs' (DMTPHA) Motion to Review Clerk's Taxation of Costs:
1. Docket fees pursuant to § 1923 in the amount of $20 shall be taxed against Plaintiffs;
2. Defendants' Bill of Costs in the amount of $1,250 as and for the cost of mounting exhibits used at oral arguments shall be disallowed; and
3. Defendants' Bill of Costs in the amount of $ 12,307 as and for fees for exemplification and copies of papers shall be disallowed.
SO ORDERED.
JUDGMENT
On this date the Court entered an Order allowing taxable costs against Plaintiffs in the above-styled and numbered cause. Therefore, the Court enters the following Judgment:
IS IT ORDERED, ADJUDGED, AND DECREED that Defendants, UNITED STATES AIR FORCE, et al., have Judgment of taxable costs against DAVIS MOUNTAINS TRANS-PECOS HERITAGE ASSOCIATION, et al, in the amount Twenty Dollars ($20).