McLelland v. Ridge Tool Co.
McLelland v. Ridge Tool Co.
Opinion of the Court
Before the Court is Defendant Ridge Tool Company's Motion for Costs. (ECF No. 56). Plaintiff Bubba McLelland has responded to the motion. (ECF No. 59). Defendant has replied. (ECF No. 61). The Court finds the matter ripe for consideration.
I. DISCUSSION
As the prevailing party in this action,
Courts should award costs other than attorneys' fees to the prevailing party *776in a lawsuit, unless an express provision regarding costs is made by federal statue or court rule. Fed. R. Civ. P. 54(d)(1). Generally, courts are limited to shifting costs incurred by the prevailing party in six statutorily defined categories, which include: fees paid to the clerk of court, fees paid for necessarily obtained transcripts, fees for printing and witnesses, fees for exemplification and necessarily obtained photocopies, certain docket fees, and expenses incurred for interpretation services.
The Court must first address Plaintiff's argument that the instant motion should be denied in its entirety due to the economic disparity between the parties. If the Court finds that argument unavailing, the Court will then separately address Defendant's claimed costs related to depositions, witness fees, photocopies, and service of process.
A. Economic Disparity Between Parties
Plaintiff argues that the Court should exercise its discretion to deny all costs sought by Defendant. Specifically, Plaintiff argues that a sizable economic disparity exists between himself, an individual operating a one-man plumbing business in south Arkansas, and Defendant, a wholly owned subsidiary of a multinational corporation reporting a net income of $1.55 billion for fiscal year 2017. Plaintiff also states that he has incurred medical expenses totaling $64,877.43 because of the injuries that were at issue in this case, and that he paid $4,000.00 to engage an expert witness. Plaintiff states further that he has permanent damage to his left eye and, as a result, has experienced a decline in income which will likely continue.
Defendant argues in response that, although a court may consider a losing party's inability to pay costs, the losing party must provide sufficient evidence to establish that inability, which Plaintiff has not done. Defendant also argues that other courts have held that a disparity in wealth between the parties is not, by itself, a sufficient ground to deny costs. Defendant argues further the equities in this case favor assessing costs against Plaintiff because he persisted in pursuing this case despite having early notice of the deficiencies in his claims.
Courts may consider a losing party's limited financial resources when determining whether to assess costs. See Cross v. Gen. Motors Corp. ,
Upon consideration, the Court finds that Plaintiff has not sufficiently demonstrated cause to outright deny Defendant's request for costs. As the party asserting a general "inequities" objection, Plaintiff bears the burden of sufficiently demonstrating the inequities. See Finan ,
B. Deposition Costs
Defendant seeks $6,844.15 in costs related to four depositions that were taken in this case. Specifically, Defendant seeks $2,445.90 for taking the deposition of Plaintiff's expert, Don Johnston. Plaintiff also seeks $4,398.25 for taking the depositions of Plaintiff, Mindy McLelland, and Shane Richards.
Courts may tax as costs "[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case."
In its motion for summary judgment, Defendant cited to and discussed transcripts from the depositions of Don Johnston and Plaintiff. Moreover, the Court relied on each of those deposition transcripts in granting Defendant's summary judgment motion. Accordingly, the Court finds that the transcripts from the depositions of Mr. Johnston and Plaintiff were necessarily obtained for use in this case and, thus, Defendant is entitled to recover costs related to those depositions. See Bathke ,
*778It does not appear that Defendant cited or otherwise used the transcripts from the depositions of Mindy McLelland and Shane Richards in a motion. Thus, the question before the Court becomes whether those depositions seemed necessary at the time they were taken. Defendant argues that they were necessary because Mindy McLelland and Shane Richards were the only witnesses at the site of the incident when Plaintiff suffered the injuries that were at issue in this case. The Court agrees and finds that Defendant reasonably believed at the time that taking the depositions of Mindy McLelland and Shane Richards was necessary to verify or controvert Plaintiff's allegations for use in a dispositive motion or at trial. Thus, the Court finds that Defendant is entitled to recover costs related to those transcripts. See Nat'l Ben. Programs, Inc. v. Express Scripts, Inc. , No. 4:10CV00907 AGF,
In sum, the Court finds that Defendant is entitled to recover deposition costs in the amount of $6,844.15.
C. Witness Fees
Defendant seeks $879.00 in costs related to witness fees. Specifically, Defendant seeks $40.00 in attendance fees paid to Plaintiff's expert witness, Don Johnston, for his one-day deposition. Defendant also seeks $39.00 in mileage costs paid to Mr. Johnston pursuant to the General Services Administration's travel rate of "$0.55 per mile." Defendant further seeks $800.00, which was paid to Mr. Johnston as his customary deposition fee.
"Fees and disbursements for ... witnesses" are contemplated by statute as recoverable costs.
"A travel allowance equal to the mileage allowance which the Administrator of General Services has prescribed ... shall be paid to each witness who travels by privately owned vehicle." 28 U.S.C. 1821(c)(2). Thus, the Court also finds that Defendant is entitled to recover mileage costs paid to Mr. Johnston. However, the Court must reduce the amount requested by Defendant. Defendant's bill of costs indicates that Mr. Johnston traveled 70 miles and requests $39.00 in mileage costs, calculated using the General Services Administration's rate of "$0.55 per mile." However, as of January 1, 2018, the General Services Administration's mileage rate changed to $0.545 per mile. See Privately Owned Vehicle (POV) Mileage Reimbursement Rates , Gen. Services Admin., https://www.gsa.gov/travel/plan-book/transportation-airfare-rates-pov-rates-etc/privately-owned-vehicle-pov-mileage-reimbursement-rates (last updated August 22, 2018). Seventy miles traveled at a rate of $0.545 per mile yields a mileage cost of $38.15. Accordingly, the Court will award Defendant a mileage cost of $38.15.
It is well established that absent statutory authority to the contrary, expert witness fees are limited to the $40.00 per day witness fee permitted by
In sum, the Court finds that Defendant is entitled to recover witness fees in the amount of $40.00 for Mr. Johnston's witness fee and $38.15 for Mr. Johnston's mileage, for a total of $78.15.
D. Photocopy Costs
Defendant seeks $451.50 in costs related to photocopies. In support of this request, Defendant provides the Court with a table listing eleven photocopy batches, the date of each batch, the cost of each, and the number of pages copied per batch.
Expenses for photocopies "necessarily obtained for use in the case" are recoverable by the prevailing party as costs.
Upon consideration, the Court declines to award Defendant its claimed photocopy costs. Defendant seeks costs incurred by photocopying 4,515 pages over the course of eleven separate photocopy batches. However, other than stating that these photocopies were "necessary for use in the case," Defendant has provided the Court with no information from which it can determine whether the photocopies were, in fact, necessarily obtained. The table provided by Defendant provides no description of the photocopy batches for which Defendant seeks costs, instead generically labeling them all as "Doc Reproduction - Black & White." (ECF No. 57, p. 5). Although Defendant correctly points out that photocopies need not be provided to the Court or given to opposing counsel to be considered "necessarily obtained" for use in a case, see
E. Subpoena Service Costs
Defendant seeks $125.00 in costs incurred by hiring Action Process Service *780to serve a subpoena for deposition on Plaintiff's expert witness, Don Johnston. (ECF No. 58, p. 5). Without citing to authority, Defendant states that it is entitled to recover the costs of this service.
Upon consideration, the Court declines to award this claimed cost.
II. CONCLUSION
For the reasons discussed above, the Court finds that Defendant's Motion for Costs (ECF No. 56) should be and hereby is GRANTED IN PART AND DENIED IN PART . Accordingly, the Court, in its discretion under Rule 54(d), awards Defendant costs of $6,922.30 related to deposition costs and witness fees.
IT IS SO ORDERED , this 4th day of October, 2018.
On August 13, 2018, the Court granted Defendant's summary judgment motion and entered judgment dismissing this action. A party who prevails on summary judgment may be entitled to costs as a prevailing party. See In re Derailment Cases ,
The Court notes that older Eighth Circuit caselaw exists providing for the full recovery of expert witness fees when the testimony was crucial to the resolution of the case. See, e.g. , Nemmers v. City of Dubuque ,
Should Plaintiff demonstrate that he is unable to pay the full amount of costs at one time, "it is the Court's belief that the parties involved can come to an independent arrangement for repayment of the costs over a reasonable amount of time." Bright v. Evonik Cyro, LLC , No. 3:11-cv-0180 SWW,
Reference
- Full Case Name
- Bubba MCLELLAND v. RIDGE TOOL COMPANY, d/b/a Ridgid
- Cited By
- 5 cases
- Status
- Published