Hall v. St. John Missionary Baptist Church

Full title: SONYA HALL PLAINTIFF v. ST. JOHN MISSIONARY BAPTIST CHURCH DEFENDANT

Court: United States District Court, E.D. Arkansas, Western Division

Date published: Apr 13, 2010

4:08CV00645-WRW (E.D. Ark. Apr. 13, 2010)

Opinion

4:08CV00645-WRW.

April 13, 2010

ORDER

WILLIAM WILSON JR., District Judge

Pending is Defendant's Motion for Costs (Doc. No. 58). Plaintiff has responded.¹

1 Doc. No. 60.

Plaintiff sued Defendant for employment discrimination, outrage, and other claims. Defendant prevailed on all counts. In its Motion for Costs, Defendant asks for $446.60 for the transcript of Plaintiff's deposition, as well as a little over $200 for witness fees and mileage, for a total of $655.15.²

2 Doc. No. 58.

Under Rule 54(d)(1) of the Federal Rules of Civil Procedure, costs other than attorneys fees "should be allowed to the prevailing party."³ The losing party has the "burden of overcoming the presumption that the prevailing party is entitled to costs, meaning that the losing party must `suggest a rationale under which the district court's actions constitute an abuse of discretion.'"⁴ Even if a deposition was not used at trial, a district court has discretion to award costs in connection with the deposition if it was necessary for use in the case, and not just "purely investigative."⁵ A judge may tax as costs "fees and disbursements for . . . witnesses."⁶ Witnesses are generally allowed to receive a per diem amount, and reimbursement of mileage.⁷

3 Fed.R.Civ.P. 54(d)(1).

4 186th Dodge, LP v. Rave Reviews Cinemas, 501 F.3d 945, 958 (8th Cir. 2007) (quoting Janis v. Biesheuvel, 428 F.3d 795, 801 (8th Cir. 2005)).

5 Slagenweit v. Slagenweit, 63 F.3d 719, 721 (8th Cir. 1995).

6 28 U.S.C. § 1920(3).

7 28 U.S.C. § 1821.

Plaintiff's deposition was necessary in this case. I relied on deposition testimony in deciding Plaintiff's outrage claim. Accordingly, awarding costs connected with the deposition is appropriate.

In connection with witness fees and mileage, Defendant asks for: "Witness fee and mileage for Darryle Hinton (subpoena) 53.23; Witness fee and mileage for Rudolph Howard (subpoena) 52.93; Witness fee and mileage for Friendly Womack (subpoena) 54.44; Witness fee and mileage for Gary Noble (subpoena) 47.95."⁸

8 Doc. No. 58.

Each of these witnesses testified at trial on March 17, 2010.⁹ Defendant, however, did not provide any documentation with respect to mileage. Accordingly, I will not award mileage — I will award only $40 per witness as an attendance fee for a total of $160.00.

9 Doc. No. 54.

The sum of costs in connection with Plaintiff's deposition ($446.60) plus witness attendance fees ($160.00) is $606.60. Defendant's Motion for Costs is GRANTED for costs in the amount of $606.60.

IT IS SO ORDERED