Opinion
County and county hospital district, having prevailed in a suit challenging the county hospital district's decision to relocate maternity and nursery services from downtown, filed motions to tax costs. The District Court, Spears, J., held that: (1) the county and county hospital district were entitled to recover as costs fees of court reporters for daily copies of the trial transcript and for transcripts of four pretrial hearings, fees of court reporters for copies of oral depositions, fees for expert witnesses, fees for legal aid witnesses, fees for exemplification of papers necessarily obtained for use in the case, fees for marshals, and fees for interpreter; and (2) it would have been inequitable to tax costs against individual indigent plaintiffs under the circumstances, as the suit against the county and county hospital district was neither frivolous, nor instituted in bad faith, and, therefore, the total taxable cost would be apportioned between plaintiffs United States and city, according to their respective roles in the prosecution of the lawsuit.
Order accordingly.
Cathy S. Surace, Daniel Searing, Donald Pailen, U.S. Dept. of Justice, Civil Rights Division, Washington, D.C., Hugh P. Shovlin, Asst. U.S. Atty., San Antonio, Tex., for U.S. A.
Stephen G. Cochran, Nancy O'Neill, Bexar County Legal Aid Ass'n, San Antonio, Tex., for private plaintiffs.
Steven Arronge, City Attorney's Office, San Antonio, Tex., for City of San Antonio.
John Daniels, Jack Efron, Daniels, Efron & Holden, San Antonio, Tex., Raymond J. Kelly, Thomas G. Dent, Marc Krass, Seyforth, Shaw, Fairweather & Geraldson, Chicago, Ill., for Bexar County Hospital Dist.
Keith Burris, Asst. Dist. Atty., San Antonio, Tex., for Bexar County Commissioners' Court.
ORDER
SPEARS, District Judge.
On this 11th day of February, 1981, came on for consideration the defendants' motions to tax costs in the above styled and numbered causes, and the plaintiffs' objections thereto. This consolidated case was filed to challenge the constitutionality of the Bexar County Hospital District's decision to relocate maternity and nursery services from downtown San Antonio. On February 20, 1980, judgment was entered for the defendants. Although the Court, in its judgment, was " unwilling to characterize this litigation as frivolous" , after duly considering the respective bills of costs, together with the oppositions thereto, and the memoranda submitted by all parties, the Court finds and concludes that defendants, as the prevailing parties, are entitled to recover certain items of costs, pursuant to Rule 54(d), Federal Rules of Civil Procedure, and 28 U.S.C. s 1920, as hereinafter set forth:
See United States v. Bexar County, 484 F.Supp. 855, 861 (W.D.Tex.1980).
BEXAR COUNTY HOSPITAL DISTRICT:
1.
Fees of the court reporters
for all or any part of the
transcript necessarily obtained for
use in the case
2.
Fees of the court reporters
for transcriptions and copies
of depositions necessarily
obtained for use in the case
3.
Fees for expert witnesses
4.
Fees for legal aid witnesses
300.00
5.
Fees for exemplification of
papers necessarily obtained for
use in the case
6.
Fees for marshals
35.00
7.
Fees for the interpreter
125.00
$21,093.70
ORAL DEPOSITIONS
________
Theresa Jesse
$136.90
Mary Esther Garzes
158.60
Jonathan Lopez
99.10
Carmen Cantu
167.80
Dr. Charles I. Cotrell
192.40
Belia Cortez
172.10
Frank Alvarez - Vol. I
216.10
Frank Alvarez - Vol. II
107.20
Henry Cisneros - Vol. I
398.40
Henry Cisneros - Vol. II
83.80
Delfina Gonzales
253.20
Rosalinda Cisneros
200.70
Juanita Adame
193.10
Jose Contreras
285.10
Bernardo Eureste
286.40
Frank Cortez
155.70
Teresa Camarillo
125.30
Robert D. Ewers
329.20
Mary Rocha
212.50
Alice Simmons
184.20
Charles Grace
230.70
Joe L. Hernandez
130.60
Tara Lewis
163.50
Jose A. Contreras
466.60
George Korbel
278.10
Evelyn Garcia
138.20
Lupe Guerra
273.30
Lydia Mejia
161.20
Sylvia Perez
170.80
Adela Navarro
226.00
Martha Williams
221.10
Patti and Rod Radle
$207.90
Albert Pena, Jr.
171.50
Rev. Kent Miller
192.50
James Miller and C.E. Anaya
405.40
Hector Salizar
197.10
Edmundo Rodriguez
210.00
Lou Nell Sutton
155.90
Sister Gregoria Ortega
265.50
Dr. Courand N. Rothe - Vol. I
106.00
Dr. Courand N. Rothe - Vol. II
135.00
Alicia Sanchez
167.20
Elia Martinez
299.40
Drs. Paul Branca and John
Franklin
873.00
Michael Middleton
291.10
Lloyd Henderson
143.50
Treadwell Phillips
147.60
Dorothy Stuck
465.45
Carol Atha
148.85
Total Depositions
$11,000.90
UNSWORN INTERVIEWS
________--
Maureen R. McLain
$ 64.60
Dr. Fernardo Guerra
92.20
Dr. W.M. Keidel
89.40
Jeanne Janes
85.30
Anita Anderson
108.30
Roger Gonzales
78.40
Dr. Frank Bryant
132.70
Dr. Jose San Martin
60.00
Marta Tijerina
106.60
Maria Elena Torralva
78.40
Dr. Richard Aubry
127.50
Dr. George Ryan
196.50
Dr. Sheldon Karones
168.95
Dr. Warren Pearse
87.14
Total Interviews
$1,475.99
This amount includes $8,616.00 for daily copies of the trial transcript, and $111.30 for the transcript of four pretrial hearings. Ordinarily, this Court would not allow costs of daily transcripts without prior court approval. However, in view of the length and complexity of this litigation, see Farmer v. Arabian American Oil Co., 379 U.S. 227, 234, 85 S.Ct. 411, 416, 13 L.Ed.2d 248 (1964); Advanced Business Systems & Supply Co. v. S.C.M. Corp., 287 F.Supp. 143, 163 (D.Md.1968), modf'd on other grounds, 415 F.2d 55 (4th Cir.), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 101 (1969), and in view of the fact that all parties utilized copies of the daily transcript at trial, and, moreover, agreed to advance the costs of these copies, the Court is of the opinion that the daily transcript copies were " necessarily obtained for use in the case" . Cf. In re Nissan Antitrust Litigation, 577 F.2d 910, 918 (5th Cir. 1978) (costs for expedited daily transcript disallowed because requested solely by defendants and not agreed to by plaintiffs). In this connection, it should be noted that the Court was the ultimate arbiter of the facts in this suit, and found the daily copy extremely beneficial. Therefore, the Court exercises its discretion to tax these costs under the circumstances. See Viverette v. Lurleen B. Wallace State Jr. College, 587 F.2d 191, 194 (5th Cir. 1979). Additionally, the Court finds that the pretrial transcripts were necessary for preparation of the trial. See Sperry Rand Corp. v. A-T-O, Inc., 58 F.R.D. 132, 138 (E.D.Va.1973); Bank of America v. Loew's International Corp., 163 F.Supp. 924, 931-32 (S.D.N.Y.1958).
With respect to Bexar County Hospital District, the Court finds it necessary to list all costs that the Court concludes were incurred in taking depositions and interviews:
The amount of expert witness fees and expenses taxable under 28 U.S.C. s 1920(3) is governed exclusively by 28 U.S.C. s 1821. See, e. g., Jones v. Diamond, 594 F.2d 997, 1029 (5th Cir. 1979); Gerber v. Stoltenberg, 394 F.2d 179, 179 (5th Cir. 1968). Section 1821 authorizes payment of: a $30 per day fee to any witness in attendance at court or deposition; a per diem subsistence allowance for any witness who is required to stay overnight at the place of attendance; and a common carrier travel expense which has historically been limited to the area in which the court can issue subpoenas. See Goodwin Bros. Leasing, Inc. v. Citizens Bank, 587 F.2d 730, 734 (5th Cir. 1979). The Court is of the opinion that no special circumstances have been shown in the instant case that would justify a departure from this so-called " 100 mile rule" . See Farmer v. Arabian American Oil Co., 379 U.S. 227, 232, 85 S.Ct. 411, 415, 13 L.Ed.2d 248 (1964); Goodwin Bros. Leasing, Inc. v. Citizens Bank, supra, 587 F.2d at 734. Consequently, each of the Hospital District's three expert's expenses may be taxed to the extent of a $30 per day attendance fee, a $41 subsistence allowance, and an approximate 100 mile roundtrip airfare.
The Court finds that the $595.00 cost submitted for reproducing ten copies of trial exhibits admitted into evidence is excessive. Because there were essentially only four parties to this litigation, the Court is of the opinion that approximately half the number of copies requested by the Hospital District was " necessarily obtained for use in the case" . The $16,003.78 amount of " exemplification" expenses was actually incurred in researching and developing charts and graphs for trial. Such expenses are not taxable items in the absence of prior court approval. See, e. g., Johns-Manville Corp. v. Cement Asbestos Products Co., 428 F.2d 1381, 1385 (5th Cir. 1970); Hiller v. Merrill Lynch, Pierce, Fenner & Smith, 60 F.R.D. 87, 90 (N.D.Ga.1973).
The $5,370.08 claim for miscellaneous expenses is omitted entirely, because this item represents the travel expenses incurred by the attorneys for Bexar County Hospital District while attending out-of-district depositions and interviews. Travel, lodging, and subsistence expenses incident to the taking of depositions are not taxable, in the absence of prior court approval, without a showing of extraordinary and compelling circumstances. See, e. g., Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163, 1170 (7th Cir. 1968), cert. denied, 395 U.S. 908, 89 S.Ct. 1750, 23 L.Ed.2d 221 (1969); Gerber v. Stoltenberg, 394 F.2d 179, 179 (5th Cir. 1968). The Court is of the opinion that no compelling circumstances have been advanced in the instant case.
The Court is of the opinion that the aforementioned copies of oral depositions were " necessarily obtained for use in the case", Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316 (5th Cir. 1978), in accordance with the reasoning of the Fifth Circuit in United States v. Kolesar, 313 F.2d 835, 849 (5th Cir. 1963). The unsworn interviews, on the other hand, were taken merely for discovery purposes and were conducted solely for the convenience of counsel. Consequently, the interview costs are not taxable. See Morris v. Carnathan, 63 F.R.D. 374, 380-81 (N.D.Miss.1974). An additional item of non-taxable costs is the $646.40 deposition expense of James Miller and C. E. Anaya, and Dr. Courand Rothe, because they testified on behalf of Bexar County Hospital District at trial. See Morrison v. Alleluia Cushion Co., Inc., 73 F.R.D. 70, 72 (N.D.Miss.1976); Morris v. Carnathan, supra, 63 F.R.D. at 380.
BEXAR COUNTY:
1.
Fees of the court reporters
for all or any of the transcript
necessarily obtained for
use in the case
$1,232.00
2.
Fees of the court reporters
for transcriptions and copies
of depositions necessarily
obtained for use in the case
____-
The Court further concludes that, because the suit was neither frivolous, nor instituted in bad faith, it would be inequitable to tax costs against the individual indigent plaintiffs under the circumstances. See, e. g. Perkins v. Cingliano, 296 F.2d 567, 569 (4th Cir. 1961); Boas Box Co. v. Proper Folding Box Corp., 55 F.R.D. 79, 81 (E.D.N.Y.1971). Therefore, the total $25,321.35 of taxable costs will be apportioned between plaintiffs, United States of America and City of San Antonio, according to their respective roles in the prosecution of this lawsuit. The Court is of the opinion that the United States should bear responsibility for seventy-five percent (75%) of the costs incurred, or $18,991.01, because it was the principal plaintiff in all aspects of this litigation, cf., Moten v. Bricklayers, Masons and Plasterers, etc., 543 F.2d 224, 239-40 (D.C.Cir.1976), and because the United States is the party best able to relieve local taxpayers of the disproportionate share of the burden. See County of Suffolk v. Secretary of the Interior, 76 F.R.D. 469, 473-74 (E.D.N.Y.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978). Plaintiff, City of San Antonio will be assessed the remaining twenty-five percent (25%) of these costs, or $6,330.34. It is, accordingly,
$4,227.65
Bexar County's recoverable deposition costs are computed as follows:
Exhibit and miscellaneous travel expenses are disallowed in their entirety for the reasons heretofore discussed in footnotes 3 and 4.
ORDERED that defendant, Bexar County Hospital District, recover the sum of $21,093.70 for its expenses incurred in this litigation, and that defendant, Bexar County recover the sum of $4,227.65 for its expenses incurred in this litigation. It is
FURTHER ORDERED that plaintiff, United States, be taxed costs in the total amount of $18,991.01 for defendants' expenses incurred in this litigation, and that plaintiff, City of San Antonio, be taxed costs in the total amount of $6,330.34 for defendants' expenses incurred in this litigation.
$6,213.01
request for court reporters'fees
submitted by Bexar County
-1,232.00
court reporter fees allowed for
copies of transcripts (SeeBexar
County, Item 1.)
-1,508.95
fees disallowed for witnesseswho
testified on behalf of BexarCounty
- 476.42
interview costs disallowed
$2,995.65