Summary
noting a split among circuits on this question, but acknowledging that the 8th Circuit has not revisited the issue since Crues
Summary of this case from SHIMEK v. MICHAEL WEINIG AGOpinion
Civil No. 95-748 (JRT/RLE).
March 20, 2002
John E. Trojack, LAW OFFICE, West St. Paul, Minnesota for plaintiff.
Patricia R. Cangemi, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, Minnesota for defendant.
MEMORANDUM OPINION AND ORDER ON MOTION FOR REVIEW OF COST JUDGMENT
Plaintiffs have prevailed in a medical malpractice action brought against defendant under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671 et seq. Judgment was entered for plaintiffs on November 8, 1999. Plaintiffs submitted a Bill of Costs to the Court on December 28, 2000, and the Clerk issued a Cost Judgment in favor of plaintiffs on February 26, 2001 in the amount of $3,175.63. This matter is now before the Court on plaintiffs' motion for review of the Cost Judgment.
ANALYSIS
Pursuant to Federal Rule of Civil Procedure 54(d), costs other than attorneys' fees are allowed "as of course to the prevailing party unless the court otherwise directs." Taxation of costs against the United States is governed by the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Such costs are limited to those enumerated in 28 U.S.C. § 1920. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987); Hull v. United States, 978 F.2d 570, 572-73 (10th Cir. 1992). Plaintiffs object to three aspects of the Clerk's Cost Judgment: (1) refusal to tax $205.00 for service fees for private process servers; (2) refusal to tax more than the statutory $40.00 per day for plaintiff's expert witness fees; and (3) refusal to tax $7,257.40 in "other costs." This Court must now determine whether any of these costs is permitted under § 1920.
The EAJA provides in relevant part:
Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title . . . may be awarded to the prevailing party in any civil action brought by or against the United States. . . .28 U.S.C. § 2412(a)(1).
28 U.S.C. § 1920 provides in relevant 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 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.
I. Private Service of Process
Plaintiffs argue that their costs of $205.00 for hiring private process servers should be taxed to defendant. The Eighth Circuit has held that costs of private process servers are not taxable as costs because § 1920 contains no provision for such expenses. Crues v. KFC Corp., 768 F.2d 230, 234 (8th Cir. 1985). See United States ex rel. Evergreen Pipeline Constr. Co. v. Merritt Meridian Constr. Corp., 95 F.3d 153, 172 (2d Cir. 1996) (agreeing with Crues); Pion v. Liberty Dairy Co., 922 F. Supp. 48, 53 (W.D.Mich. 1996) (same). Plaintiffs argue that the Ninth Circuit's decision in Alflex Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175 (9th Cir. 1990) should dictate the Court's action here. Alflex disapproved of the Eighth Circuit's reasoning in Crues, and held that private service fees are taxable because the U.S. Marshal rarely serves process today. See id. at 178 n. 6.
Plaintiffs' citation also recognizes that courts are split on this matter. Crues is an older case, and if presented with the question today, the Eighth Circuit might decide that private service costs are taxable. See, e.g., Collins v. Gorman, 96 F.3d 1057, 1059-60 (7th Cir. 1996) (holding that private service fees are taxable because § 1920 refers to fees "of" the marshal, not fees "to" the marshal, and noting that Crues did not consider this approach); Evergreen Pipeline, 95 F.3d at 172 (discussing but declining to adopt possible grounds to hold that private service fees are taxable). On the other hand, the Eighth Circuit may choose to keep its present rule. In the meantime, this Court's obligation is clear. Crues has not yet been revisited by the Eighth Circuit; in the absence of contrary controlling authority, this Court is bound by the Court of Appeals' decision that plaintiffs' private service fees are not taxable. Accordingly, the Court holds that plaintiffs are not entitled to taxation of $205.00 in service fees.
II. Expert Witness Costs
Plaintiffs object to the Clerk's failure to tax the costs of expert witness Dr. Marmorstein beyond the statutory attendance fee provided for in 28 U.S.C. § 1821. Plaintiffs claim that they should be entitled to $7,122.00, which covers Dr. Marmorstein's retainer, "medical record review," and deposition fees, as well as his airline travel.
This amount includes $40 that is "associated with" plaintiff's expert Dr. Levine, who apparently arrived at a scheduled deposition but then refused to testify. See Cangemi Decl. Plaintiffs concede that these costs are not taxable. See Pl. Supp. Memo in Support of Review of Cost Judgment at 5. Therefore, the amount plaintiffs are requesting for expert witnesses should actually be stated as $7,082.00.
In their Supplemental Memorandum, plaintiffs also claim that an additional $97.49 should be taxed as a subsistence expense to cover Dr. Marmorstein's hotel costs. Plaintiffs did not include this amount in their Bill of Costs, nor have they submitted affidavits indicating that such charges are correct. This is in clear violation of the requirements set forth at 28 U.S.C. § 1920 and 1928. Plaintiffs also did not include the hotel costs in the amount t hey request in the Conclusion of their Memorandum. The Court is therefore uncertain whether plaintiffs are actually requesting that the additional $97.49 be taxed, or if they are simply noting that they are entitled to it. Either way, because plaintiffs did not properly include the $97.49 in their Bill of Costs and made no mention of it in their attorneys' affidavits, the Court determines that the amount is not properly presented and declines to address it.
Plaintiffs' memorandum also alludes to a deposition by Dr. Norquist. Again, neither the Bill of Costs nor any of plaintiffs' affidavits attest to such a deposition. Although the record contains veiled references to Dr. Norquist, the Court also concludes that any charges for his fees are not properly before the Court.
1. Attendance Fees
Absent explicit statutory authority to the contrary, the recovery of costs for expert witnesses that are not court-appointed is limited to $40 per day, as provided in 28 U.S.C. § 1821(b). Crawford, 482 U.S. at 445. Plaintiff argues that this Court should follow the traditional Eighth Circuit rule as articulated in Paschall v. Kansas City Star Co., 695 F.2d 322 (8th Cir. 1982). That approach permitted district courts to award expert fees when an expert's testimony was crucial to the resolution of the issues decided in the case. Id. at 338-39. Paschall based its holding upon dicta from the Supreme Court's decision in Farmer v. Arabian Amer. Oil Co., 379 U.S. 227 (1964). See Paschall, 695 F.2d at 338-39. See also Gilbert v. City of Little Rock, Arkansas, 709 F. Supp. 856, 862 (E.D.Ark. 1987), aff'd, 867 F.2d 1062 (8th Cir. 1989) (explaining that Paschall was based upon Farmer). In Crawford, however, the U.S. Supreme Court expressly disapproved of the Farmer language, calling it "classic obiter, something mentioned in passing, which is not in any way necessary to the decision of the issue before the Court." Crawford, 482 U.S. at 443. The Court held in Crawford that Congress has passed detailed statutes regarding witness fees, broadening their availability in certain statutes. Id. at 444. Thus, the Court concluded, federal courts are not "empowered to exceed the limitations explicitly set out in §§ 1920 and 1821 without plain evidence of congressional intent to supersede those sections." Id. at 445. See Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane 10 Federal Practice Procedure: Federal Rules of Civil Procedure § 2678 (3d ed.). See also Hull, 978 F.2d at 572-73 (holding that the Supreme Court's rationale in Crawford confines taxation of costs to the United States under EAJA to the limits prescribed in §§ 1920 and 1821). The Eighth Circuit has recognized this clarification of doctrine, stating that "[i]n light of Crawford, this Court is convinced that it can tax as costs expert witness fees in excess of the [$40]-per-day limit of § 1821 only where expressly authorized by statute or agreement." Gilbert, 709 F. Supp. at 862 (emphasis added). The present case is brought for medical malpractice under the Federal Tort Claims Act, which does not explicitly authorize granting expert witness fees in excess of the statutory $40-per-day limit. The record shows that Dr. Marmorstein' services were used on two days. Therefore, the Court holds that the Clerk correctly determined that plaintiffs are entitled to no more than $80.00 for expert witness fees.
2. Witness Travel Expenses
Plaintiff also requests that Dr. Marmorstein's travel expenses of $1,432.00 be taxed as costs. Section 1821(c)(1) provides that "a witness who travels by common carrier shall be paid for the actual expenses of travel. . . . Such a witness shall utilize a common carrier at the most economical rate reasonably available. A receipt or other evidence of actual cost shall be furnished." Although this fee was noted in the Bill of Costs and an accompanying affidavit, the Court finds no receipt in the record. Plaintiffs did belatedly submit a Visa credit card statement, which contained a charge to Northwest Airlines and to a travel agent. The Court accepts the affidavit of plaintiffs' counsel John Trojack that this expense is correct and that the travel was necessary to the litigation. See Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994) (considering an affidavit from trial counsel sufficient to satisfy the "evidence of actual cost" requirement). In light of this affidavit, the Court will also presume that such travel was done "at the most economical rate reasonably available." 28 U.S.C. § 1821(c)(1). Therefore, the Court holds that plaintiffs are entitled to taxation of $1,432.00 in travel expenses.
III. "Other Costs"
Plaintiffs object to the Clerk's failure to tax $7,257.40 in "Other Costs," "Delivery Charges," and "Miscellaneous Expenses Incident to Discovery." These expenses, which are listed in Exhibit A to the Bill of Costs and in the Affidavit of Daniel A. Schermer, apparently include on-line and other research, fees for review of medical records, delivery charges, and airline fares. In support of their claims, plaintiffs cite to the Ninth Circuit decision in Alflex, claiming that the Court may interpret the meaning of terms used in § 1920. This much is certainly true. Plaintiffs rely, however, on International Wood Processors v. Powder Dry, Inc., 598 F. Supp. 299 (D.S.C. 1984), which itself relies on the Supreme Court's now-discredited dicta from Farmer. Thus, despite their citation to Crawford, plaintiffs essentially argue that this Court may tax costs that are not provided for in § 1920. As discussed above, this Court may not do so absent independent statutory authority. For the reasons discussed herein, the Court therefore determines that none of these "other costs" are taxable as costs as that term is used in § 1920.
The majority of these items appear to involve various types of research and review of documents. It is well established in the Eighth Circuit that legal research — computerized and otherwise — "is a component of attorneys' fees and cannot be independently taxed as an item of cost." Leftwich v. Harris-Stowe State College, 702 F.2d 686, 695 (8th Cir. 1983); Benson v. Northwest Airlines, Inc., 1997 WL 122897 at *5 (D.Minn. 1997). Therefore, the Court finds that the $4,460.37 in items listed by plaintiffs as "other costs" were properly excluded by the Clerk.
Some of these "other costs" also seem to be for services of expert witnesses. For the reasons discussed in Part II, the Court concludes that these expenses are not taxable under § 1920.
Plaintiff also seeks reimbursement for several Federal Express delivery charges. Delivery services like Federal Express are not "costs" as that term is used in § 1920, but are in fact out-of-pocket expenses. Hollenbeck v. Falstaff Brewing Corp., 605 F. Supp. 421, 439 (D. Mo. 1984) aff'd, 780 F.2d 20 (8th Cir. 1985). See also Cody v. Private Agencies Collaborating Together, Inc. 911 F. Supp. 1, 6 (D.D.C. 1995) (refusing to tax Federal Express costs because they are not litigation costs, but "overhead costs" normally associated with the practice of law); El-Fadl v. Central Bank of Jordan, 163 F.R.D. 389, 390 (D.D.C. 1995) (citing cases and noting that the "overwhelming weight of authority" have declined to tax costs for courier services and postage). Therefore, the Court finds that the $88.29 listed by plaintiffs as "delivery charges" is not covered by § 1920, and were properly excluded by the Clerk.
Finally, plaintiffs seek reimbursement for $1,705.00 in airline travel expenses, apparently incurred for plaintiffs' attorneys to attend depositions. It is also well established that attorneys' travel expenses are generally not allowable costs under § 1920. Hollenbeck, 605 F. Supp. at 439 ("Absent extraordinary or compelling circumstances, travel of attorneys is not a taxable cost of taking depositions."); Wahl v. Carrier Mfg. Co., Inc., 511 F.2d 209, 217 (7th Cir. 1975); Meredith v. Schreiner Transport, Inc., 814 F. Supp. 1004, 1007 (D.Kan. 1993) (citing cases). The Court therefore finds that the $1,705.00 listed by plaintiffs as "miscellaneous expenses incident to discovery" were properly excluded by the Clerk.
Accordingly, the Court holds that plaintiffs are not entitled to taxation of $7,257.40 for "other costs."
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that plaintiffs' Motion for Review of Cost Judgment [Docket No. 187] is GRANTED in part and DENIED in part as set forth in the text of the Opinion accompanying this Order.
LET JUDGMENT BE ENTERED ACCORDINGLY.