REEVES CONSTRUCTION COMPANY v. HAYWARD INDUSTRIES, INC. et al

Response to 101 Bill of Costs

M.D. Ga.March 21, 2019

IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA MACON DIVISION Reeves Construction Company, ) A Georgia corporation, ) ) Plaintiff, ) ) Civil Action File Number vs. ) ) 5:16-cv-329 Hayward Industries, Inc., a New ) Jersey corporation, and Diacom ) Corporation, a Delaware corporation, ) ) Defendants. ) ________________________________________________________________________ PLAINTIFF’S RESPONSE AND OBJECTIONS TO DEFENDANT HAYWARD INDUSTRIES, INC.’S BILL OF COSTS ________________________________________________________________________ Plaintiff Reeves Construction Company (“Reeves”) files these objections to Defendant Hayward Industries, Inc.’s (“Hayward”) Bill of Costs. Hayward has vastly overstated the costs it is entitled to receive in this action. Hayward has claimed costs of $106,333.80. However, pursuant 28 U.S.C. § 1920, the court must disallow $98,337.99 of these costs. At most, Hayward is entitled to only $7,995.81 in costs. A summary of Reeves’ response and objections with argument and citation to authority are set out below. I. Summary Hayward submitted a Bill of Costs, which included a request for fees for courtesy copies, postage, attorney travel, lodging, meals and non-court appointed experts. None Case 5:16-cv-00329-TES Document 102 Filed 03/21/19 Page 1 of 6 — 2 — of these fees are recoverable under the relevant statute, 28 U.S.C. § 1920. For that reason, Reeves respectfully requests this Court deny the award of $98,337.99 of Hayward’s requested costs. II. Argument and Citation to Authority The power to tax costs pursuant to Rule 54 is not an expansive one; rather, “absent explicit statutory or contractual authorization for the taxation of other expenses, federal courts are bound by the limitations set out in 28 U.S.C. § 1920.” Dopson v. Steverson, CV 317-053, 2018 WL 6617647, at *1–3 (S.D. Ga. Dec. 18, 2018), citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987). Consequently, the Court may not tax any cost unless it falls within one of the categories enumerated by the statute. Id. 28 U.S.C. § 1920 provides: 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 for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are 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. Hayward has requested fees for courtesy copies, postage, attorney travel, lodging, meals and non-court appointed experts. These fees, which are not allowed under the Case 5:16-cv-00329-TES Document 102 Filed 03/21/19 Page 2 of 6 — 3 — statute, are highlighted in the attached Exhibit A. The Court must deny an award of these expenses for the reasons discussed below. Courtesy copies of deposition transcripts. Hayward has included a $16.00 fee for a condensed version of the Diacom Corporation deposition. Ex. A at 2, ln. 11; Ex. B, Deposition Invoice. These additional “mini” transcript copies are for attorney courtesy only, and are not recoverable under 28 U.S.C. § 1920. See Smith v. Metro. Sec. Servs., Inc., 1:08-CV-01783-JOF, 2012 WL 12888677, at *7–9 (N.D. Ga. Apr. 19, 2012) (disallowing “mini” transcripts and CD charge because these were in addition to the original and were made for the convenience of counsel only). The Court should disallow the $16.00 fee for this reason. Postage. “Postage is not recoverable under 28 U.S.C. § 1920.” In re Mentor Corp. ObTape Transobturator Sling Products Liab. Litig., 2004, 2016 WL 6393589, at *8 (M.D. Ga. Oct. 25, 2016). Accordingly, the Court should disallow line items 16, 30, 34, 56 and 106 of Exhibit A for FedEx charges, totaling $335.15. Attorney travel, lodging and meals. Fees for attorney travel, lodging and meals are not recoverable under 28 U.S.C. § 1920. See Smith v. Metro. Sec. Servs., Inc., 1:08-CV- 01783-JOF, 2012 WL 12888677, at *7–9 (N.D. Ga. Apr. 19, 2012) (disallowing parking and mileage reimbursements for plaintiff's counsel's transportation on the days of the pretrial conference, the special master trial, and the trial); In re Mentor Corp. ObTape Transobturator Sling Products Liab. Litig., 2004, 2016 WL 6393589, at *8 (M.D. Ga. Oct. Case 5:16-cv-00329-TES Document 102 Filed 03/21/19 Page 3 of 6 — 4 — 25, 2016) (attorney travel and lodging expenses not recoverable under 28 U.S.C. § 1920); Morris v. Augusta-Richmond Cty., Georgia, 1:14-CV-196, 2017 WL 1078643, at *3 (S.D. Ga. Mar. 21, 2017) (hotel room, meeting room, meals, and travel not taxable under 28 U.S.C. § 1920). The Court should disallow line items 17-29, 31, 33, 35-55, 57-64, 66-74, 77-94, 96-101 and 107-108 in Exhibit A, totaling $23,455.55, because all of those fees are related to attorney travel, lodging or meals. Non-court appointed expert fees. The statute only allows for recovery of court appointed experts. 28 U.S.C. § 1920(6). None of the experts for which Hayward is seeking fees are court appointed; therefore, recovery for their fees is not allowed. See Kivi v. Nationwide Mut. Ins. Co., 695 F.2d 1285, 1289 (11th Cir.1983) (“additional amounts paid as compensation, or fees, to expert witnesses cannot be allowed or taxed as costs in federal courts.”); In re Mentor Corp. ObTape Transobturator Sling Products Liab. Litig., 2004, 2016 WL 6393589, at *8 (M.D. Ga. Oct. 25, 2016) (“[e]xpert witness fees are not recoverable under 28 U.S.C. § 1920”). The Court should disallow the fees in line items 32, 65, 75, 76, 95 and 102-105 of Exhibit A, totaling $74,531.29, for this reason. III. Conclusion $98,337.99 of Hayward’s submitted fees with its Bill of Costs are not allowable under the governing statute. Reeves therefore requests the Court deny recovery of those costs, and any other recovery to which Reeves may be justly entitled. Case 5:16-cv-00329-TES Document 102 Filed 03/21/19 Page 4 of 6 — 5 — This the 21st day of March, 2019. s/David M. Bessho David M. Bessho Georgia Bar No. 055784 COZEN O’CONNOR The Promenade, Suite 400 1230 Peachtree Street, N.E. Atlanta, Georgia 30309 Telephone: (404) 572-2000 jmcconnaughey@cozen.com dbessho@cozen.com Case 5:16-cv-00329-TES Document 102 Filed 03/21/19 Page 5 of 6 — 6 — CERTIFICATE OF SERVICE I hereby certify that, on March 21, 2019, I served the foregoing using the CM/ECF system which will automatically send e-mail notification of such filing to the following attorneys of record: Ollie M. Harton William J. Martin Hawkins Parnell Thackston & Young LLP 303 Peachtree Street NE Suite 4000 Atlanta, Georgia 30308 Jeffrey W. Melcher Tawana B. Johnson Wilson, Elser, Moskowitz, Elderman and Dicker, LLP 3399 Peachtree Road, NE, Suite 400 Atlanta, Georgia 30326 s/ David M. Bessho David M. Bessho Case 5:16-cv-00329-TES Document 102 Filed 03/21/19 Page 6 of 6