Opinion
C.A. No. 01-247 S
May 19, 2002
Leo Attilli, Esq., Appellant Counselors.
John B. Reilly, Esq., Appellee Counselors.
Report and Recommendation
This matter is before the court on plaintiffs' objection to a Bill of Costs, filed by the defendant pursuant to Fed.R.Civ.P. 54(d). This matter has been referred to me pursuant to 28 U.S.C. § 636 (b)(1)(B) for a report and recommendation. On May 12, 2003, a conference was held in my chambers on this matter. For the reasons that follow, I recommend that plaintiffs' objection be overruled, and that costs be awarded to the defendant in the amount requested, $2,559.71.
Background
On April 26, 1999, Ciro Lotito ("Lotito") was allegedly injured when he fell from a ladder at his store, Imperial Arrow Associated Services ("Imperial Arrow"). During the fall, a sprinkler system in the store activated, causing damage to inventory and equipment. Lotito and Imperial Arrow filed a claim for the damage with defendant Peerless Insurance Company ("defendant" or "Peerless"). Peerless denied the claim. Thereafter Lotito and Imperial Arrow (collectively "plaintiffs") commenced suit in the Rhode Island Superior Court for, inter alia, breach of contract. Peerless removed the matter to this Court and the case proceeded to trial. A jury returned a verdict for the defendant.
Defendant thereafter filed a Bill of Costs, requesting the following fees be taxed to the plaintiff: (1) the cost of removal; (2) the costs for the service of summons and subpoenas for Claire Eddy, Theodore Urbanski, Christopher Pesco, and Albert Varatta; (3) fees for the court reporter for the deposition of Claire Eddy, Albert Varata, Theodore Urbanski, Ciro Lotito and Joséph Zuromsky; (4) fees for witnesses Claire Eddy, Christopher Pesco, Theodore Urbanski, and Albert Varrata; (5) fees of exemplification; and (6) docket fees.
Plaintiffs filed an Objection to a portion of these costs, and Peerless has supplied a Reply. Finding no merit in plaintiffs' objection, I recommend that it be overruled.
This Court will not discuss those portions of the Bill of Costs to which plaintiffs have not lodged an objection.
Discussion
Fed.R.Civ.P. 54(d) directs that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs. . . ." See Fed.R.Civ.P. 54(d). The term "costs" as used in Rule 54(d) is defined in 28 U.S.C. § 1920, which provides in pertinent part:
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 disbursement for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in this case;
(5) Docket fees under Section 1923 of this title;
* * *
A. Cost of Removal
Plaintiffs first object to the costs taxed for the removal fee. Plaintiffs filed this case in the state superior court. Defendant, however, removed the case to this court and incurred the cost of the removal fee. See 28 U.S.C. § 1914 (a). Plaintiffs contend that the "[r]emoval was at the election of the defendant, . . . and it served no benefit to the plaintiff . . . therefore this cost should be disallowed."See Plaintiffs' Memorandum in Support of Objection to Costs, at 1.
Plaintiffs argument is without merit and borders on being frivolous. In adversarial proceedings, such as here, most actions taken by one party are contrary to the wishes of the opposing party. That is the nature of litigation. More importantly, a removal fee is a filing fee of the clerk. See 28 U.S.C. § 1914 (a). Accordingly, the cost of removal is well within the ambit of 28 U.S.C. § 1920 (1).
B. Deposition Costs
Next, plaintiffs object to the costs assessed for depositions of Claire Eddy, Ciro Lotito, and Albert Varatta. Section 1920(2) provides for the taxation of costs for "[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." 28 U.S.C. § 1920 (2). The Court of Appeals for the First Circuit has set forth guideposts for determining when an award under this subsection may be obtained. In Templeman v. Chris Craft Corp., 770 F.2d 245 (1st Cir. 1985), the First Circuit determined that prevailing parties are entitled to reimbursement for costs for the deposition of witnesses when those depositions were introduced into evidence at trial, or used at trial. Id. at 248-249. However, it is within the discretion of the district court to tax deposition costs if special circumstances warrant it, even though the depositions were not put into evidence or used at trial. Id.; See also Neles-Jamesbury, Inc., v. Fisher Controls Int'l., Inc., 140 F. Supp.2d 104 (D. Mass. 2001).
1. Claire Eddy
Plaintiffs contend that the deposition costs associated with Claire Eddy should be disallowed since this witness was available for an Examination Under Oath ("EUO") prior to the commencement of suit. Plaintiffs contend that the defendant waived the opportunity to conduct an EUO and therefore their choice to proceed with a formal deposition of this witness should not be taxed to the plaintiffs.
However, it matters not what tools were available to the defendant prior to the commencement of suit to secure this witness's testimony. The only relevant inquiry is whether the deposition was used at trial for special circumstances warrant the imposition of deposition costs. See Templeman 770 F.2d at 248. Here, the defendant used the deposition of Ms. Eddy at trial. Accordingly, this cost is appropriately taxed to the plaintiffs.
2. Ciro Lotito
Plaintiffs next object to the costs taxed for the EUO of Ciro Lotito. Plaintiffs' contend that defendant's EUO of this witness fails to come within the reach of Section 1920(2) and should therefore be disallowed.
However, this court will not split hairs to distinguish an "EUO" and a "deposition." They appear to this writer to be the same. Asked to distinguish the difference at a conference held in my chambers on this matter, both counsels' response indicated that both an EUO and a deposition employ the services of a stenographer for the purpose of generating an admittable transcript which may be relied upon during trial and entered into evidence. In fact, defendant admitted much of the EUO testimony of Mr. Lotito into evidence at trial during Mr. Lotito's cross examination.
Defendant's choice to secure this witness's testimony in an EUO is no different than that of a deposition conducted during discovery. Accordingly, the cost of the EUO falls within the reach of § 1920(2), as a fee "of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case," since the EUO was used at trial. See 28 U.S.C. § 1920 (2).
3. Albert Varatta
Plaintiffs assert that the deposition costs for Albert Varatta should be disallowed since "Peerless breached its contract and failed to investigate." Plaintiffs also contend that this cost should be disallowed since Mr. Varatta was an agent of Peerless.
Plaintiffs' first contention is wholly without merit. Peerless defended this action contending that plaintiffs' claims were frivolous. The jury spoke, siding with the defendant. That is, Peerless did not breach its contract.
Plaintiffs' second contention is equally without merit. Plaintiffs contend Albert Varata served as an agent of the defendant and therefore the taxing of costs to depose this witness was improper. However the only inquiry I need make is whether the deposition testimony was put into evidence or used at trial, or whether special circumstance warrant the awarding of costs for this deposition. See Templeman, 770 F.2d at 248. Here, the defendant used this deposition at trial. Therefore, the cost is appropriately taxed to the plaintiffs.
C. Cost for the Service of the Trial Subpoenas
Plaintiffs next contend that the taxing of costs for the service of trial subpoenas for witnesses Eddy, Varatta, Urbanski, Zuromsky, and Pesco should be disallowed. As a basis, Plaintiffs contend that witnesses Urbanski, Zuromsky and Pesco were all friendly witnesses to the defendant and therefore subpoenas to secure their presence was unnecessary. This argument is without merit. Regardless of a witness's affiliation with a party, there is no guarantee that a witness will voluntarily come forth and be present at trial simply because they are associated with a party requesting their attendance.
Plaintiffs also contend that these witnesses need not have been served with a trial subpoena by the defendant since they were served with a subpoena by the plaintiffs. This is likewise without merit. Defendant had a right to subpoena these witnesses to secure their presence at trial.
It should be noted that Peerless has not requested reimbursement with respect to service of the trial subpoena costs for Zuromsky and Varatta. Defendant only seeks reimbursement for Eddy, Urbanski, and Pesco.
Accordingly, the cost for the service of the trial subpoenas for witnesses Eddy, Urbanski, and Pesco, — the witnesses the defendant requested reimbursement for — is properly taxed to the plaintiffs.See 28 U.S.C. § 1920 (1); See also Alflex Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175, 177 (1990); Roberts v. Homelite Division of Textron, Inc., 117 F.R.D. 637 (N.D. Ind. 1987) (Private process server is the same as the U.S. Marshal for purposes of the taxation of costs).
D. Cost for the Service of Deposition Subpoenas
Plaintiffs also appear to assert that they should not be taxed for the service of deposition subpoenas for Claire Eddy and Albert Varatta. As a basis, plaintiffs assert the same reasons as stated above, i.e. (1) Claire Eddy was available to be deposed by a EUO and (2) Albert Varatta was an agent of Peerless. For the same reasons state above, I reject their contentions. Peerless had every right to serve on the witnesses subpoenas to attend depositions. Plaintiffs were properly taxed for the service of deposition subpoenas of Ms. Eddy and Mr. Varatta. See 28 U.S.C. § 1920 (1).
E. Witness Fees
Plaintiffs also appear to assert that the witness fees for Claire Eddy are inappropriate. Defendant charged in its Bill of Costs fees and mileage for Ms. Eddy's attendance at the trial and at her deposition. The fees taxed are appropriate. See 28 U.S.C. § 1821 and 28 U.S.C. § 1920 (3). Accordingly, plaintiffs' objection to this award should be overruled.
F. Plaintiffs' Bald Assertion that the Taxation of Costs is Unconscionable and Unreasonable
Lastly, plaintiffs assert in their objection to the taxation of costs that such a taxation is unconscionable and unreasonable. Plaintiffs failed however to develop this argument in their memorandum, factually or legally. Accordingly, I reject their assertions out of hand. The Court notes that Fed.R.Civ.P. 54(d) directs that "costs other than attorneys' fees shall be allowed as of course to the prevailing party. . . ." Fed.R.Civ.P. 54(d) (emphasis supplied).
Conclusion
For the reasons stated above, I recommend that plaintiffs' objection to the Bill of Costs be overruled. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).