Opinion
No. 1:02-CV-00295.
June 30, 2005
OPINION AND ORDER
On July 17, 2003, this Court entered summary judgment in favor of Defendant CSX Transportation, Inc. ("CSX") (doc. 41). On August 15, 2003, CSX filed a bill of costs in the amount of $8,742.25 (doc. 43); Plaintiffs did not file any opposition thereto. Ultimately, this Court's disposition of the case was affirmed by the Sixth Circuit on November 8, 2004. Despite CSX's effort to obtain payment by the Plaintiffs, they have declined to pay the amount requested. Accordingly, on February 15, 2005, CSX filed a motion for an entry of judgment for costs in this case (doc. 50) pursuant to Fed.R.Civ.P. 54(d). The Clerk of this Court granted the motion the next day, indicating that the five-day period in which Plaintiffs could file a motion to retax costs would begin upon receipt of the associated memorandum (doc. 51). Plaintiffs did so on February 21, 2005 (doc. 53), and CSX responded on March 17, 2005 (doc. 54), rendering the motion ripe for decision.
I. APPLICABLE LEGAL STANDARD
In sum, the Plaintiffs object to four general types of expenses CSX seeks to tax in this case. The Court will address eachseriatim. At the outset, however, it is important to recognize that the law presumes that "costs other than attorneys' feesshall be allowed as a matter of course to the prevailing party." Fed.R.Civ.P. 54(d). While what constitutes a taxable "cost" is circumscribed by 28 U.S.C. § 1920 and the amount awarded thereunder is also limited to what is reasonable, see, e.g., Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987), "[i]t is generally recognized that courts may interpret the meaning of items listed" in the statutory provision. BDT Products, Inc v. Lexmark Intern., Inc., 405 F.3d 415, 419 (6th Cir. 2005) (parenthetical in original) (citation omitted). Accordingly, Plaintiffs bear the burden of proving that the imposition of any of the particular costs taxed by the Clerk was improper. See, e.g., BDT Products, 405 F.3d at 420,White White, Inc. v. American Hosp. Supply Corp., 786 F.2d 728, 732 (6th Cir. 1986).
CSX argues in its response that the Plaintiffs, by waiting more than a year and a half to respond to its initial "filing" on the matter of August 15, 2003 (doc. 43), have "waved any right to seek reconsideration of the taxed costs" (doc. 54). The Court cannot agree with this conclusion. CSX's initial filing did not demand that the Court take any action or enter any finding as to the amount of costs taxable in the case; it was essentially for informational purposes alone. Simply put, there was nothing before the Court for consideration to which they should — or could — object. Furthermore, the case was appealed one day after this initial filing; it was on active appeal for much of the interim period that CSX notes. In light of these facts, the Court is unwilling to find that Plaintiffs somehow "waived" their rights to contest the amount. They responded promptly — as contemplated by Fed.R.Civ.P. 54(d) — after the Clerk's entry of judgment of costs was made, and there is no evidence of bad faith in their actions other than a disagreement that they should be held responsible for some of the items included as costs. To find that they had waived their rights to contest these amounts in these circumstances would not only violate the scheme contemplated by Fed.R.Civ.P. 54(d), but it would also discourage parties from attempting to resolve the issue of costs privately without the Court's intervention.
II. DEPOSITION COSTS
First, the Plaintiffs object to the inclusion of costs associated with the taking of fourteen depositions in the case. CSX included the costs of sixteen depositions taken in its bill of costs, but the testimony of only two of these deponents was used in support of its successful motion for summary judgment. Accordingly, Plaintiffs insist that the remaining fourteen depositions were not "reasonably necessary for use in the litigation" and, therefore, the expense of taking them — $6,907.00 — is not a taxable cost under the statute.
Plaintiffs' argument, however, is misplaced. The Sixth Circuit has repeatedly acknowledged 28 U.S.C. § 1920 has been interpreted to "authorize taxing as costs the expenses of taking, transcribing and reproducing depositions." Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989); see also 28 U.S.C. § 1920(2); BTD Products, 405 F.3d at 420-21; McCombs v. Meijer, Inc., 395 F.3d 346, 361 (6th Cir. 2005). There is no requirement that they actually be used at trial or in a motion to be taxable; it only need be reasonably necessary for discovery at the time it was taken. See McCombs, 395 F.3d at 361; Sales, 873 F.2d at 120 (holding that the [n]ecessity [of a deposition] is determined as of the time of taking"). Viewed in light of the backdrop of the instant litigation, the Plaintiffs have failed to demonstrate how any of these fourteen depositions were unnecessary simply because they were not used in CSX's dispositive motion briefing, particularly in light of the fact that they initiated a number of them; they have also failed to argue or otherwise demonstrate that the amount claimed for them was unreasonable. See BDT Products, 405 F.3d at 420; White White, Inc., 786 F.2d at 732. Accordingly, Plaintiffs' motion as to this cost will be denied.
III. SUBPOENA SERVICE COSTS
Plaintiffs next object to the taxation of $160.00 in subpoena service fees for deponents Thomas Moranz and Paul Owens, contending — properly — that this Court's guidelines for taxation of court costs exclude such fees from taxation (doc. 53). These guidelines, however, are not binding upon the Court in deciding whether taxation of a particular expense is appropriate. Section 1920(1) clearly establishes that "[f]ees of the clerk and marshal" are taxable costs under the statute. Given the Federal Rules of Civil Procedure's incorporation of private process servers into the federal scheme as an alternative of service by the marshal, see Fed.R.Civ.P. 4(c), this Court agrees that the costs of such service are within the broad scope of taxable costs contemplated by 28 U.S.C. § 1920 as long as these fees do not exceed those charged by the marshal. See Tinch v. City of Dayton, 199 F.Supp.2d 758, 770 (S.D. Ohio 2002) (Rice, C.J.). Accordingly, the Clerk properly taxed such costs to the Plaintiffs, and Plaintiffs' objection thereto is without merit.
IV. PRO HAC VICE FILING FEES
Third, Plaintiffs object to the $100 taxed for the pro hac vice admission of two of CSX's counsel to represent it in this case. As CSX notes, however, fees of the Clerk are expressly authorized by the statute. See 28 U.S.C. § 1920(1). Accordingly, Plaintiffs have failed to satisfy their burden of showing this cost was improperly taxed, and their motion to exclude it will be denied accordingly.
V. WITNESS FEES
Finally, Plaintiffs object to the $132.13 in witness costs taxed by the Court for Mr. Moranz and Mr. Owens, claiming that there was "no accompanying documentation as to the appropriateness of such fees" (doc. 53). This contention is without merit. The Court has already concluded that these depositions were "necessary" as contemplated by 28 U.S.C. § 1920; these associated witness costs were itemized and substantiated for the Court. That is all that is required. See Mccombs, 395 F.3d at 361. Accordingly, they were properly taxed by the Clerk. See, e.g., 28 U.S.C. § 1821, 1920; Sales, 873 F.2d at 122.
VI. CONCLUSION
For the foregoing reasons, Plaintiffs' Motion To Review Clerk's Taxation of Costs (doc. 53) is DENIED.
SO ORDERED.