United States District Court, E.D. North Carolina, Southern Division
CALVIN T. NORTON Plaintiff,
JEFFREY ROSIER, Defendant.
ORDER ON BILL OF COSTS
matter is before the clerk on the motion for bill of costs
[DE-160] filed by defendant Jeffrey Rosier. In response,
plaintiff filed a motion for disallowance of costs [DE-162].
Defendant has filed a response [DE-166] in opposition to the
motion for disallowance. For the reasons set forth below, the
motion for bill of costs [DE-160] is granted in part and the
motion for disallowance [DE-162] is denied.
initiated this action by filing a complaint [DE-1] in this
court on November 10, 2014, alleging claims against
defendants Jeffrey Rosier and City of Whiteville. On March 5,
2015, the court granted defendants' motion to dismiss
[DE-16] and entered judgment in favor of both defendants that
day [DE-17]. Plaintiff appealed from the judgment, and on
January 7, 2016, the Fourth Circuit Court of Appeals affirmed
the judgment in part, insofar as the dismissal of plaintiff s
claim against the City of Whiteville, and vacated the
judgment insofar as it dismissed plaintiffs claims against
defendant Rosier [DE-26]. After subsequent discovery and
pretrial litigation, the case proceeded to trial before a
jury. On February 13, 2019, the jury returned a verdict
finding in favor of Rosier [DE-157], and the clerk entered
judgment in favor of Rosier on February 14, 2019 [DE-159].
Defendant timely filed a motion for bill of costs on February
28, 2019 [DE-160].
seeks costs under Rule 54(d)(1) as the prevailing party in
this action. See Fed.R.Civ.P. 54(d)(1) ("Unless a
federal statute, these rules, or a court order provides
otherwise, costs-other than attorney's fees-should be
allowed to the prevailing party."). Federal courts may
assess only those costs listed in 28 U.S.C. § 1920.
See Arlington Cent. Sch. Bd. of Educ. v. Murphy, 548
U.S. 291, 301 (2006); Crawford Fitting Co. v. J.T.
Gibbons. Inc., 482 U.S. 437, 441-42 (1987),
superseded on other grounds by statute. 42 U.S.C.
§ 1988. Local Civil Rule 54.1 "further refines the
scope of recoverable costs." Earp v. Novartis
Pharmaceuticals Corp., No. 5:11-CV-680-D, 2014 WL
4105678, at*l (E.D. N.C. Aug. 19, 2014). In this case, Rosier
seeks recovery of $6, 025.74 in costs from plaintiff.
opposes the motion for bill of costs on two grounds. First,
plaintiff argues costs should be denied on the basis of his
good faith, indigency, and closeness of the issues presented.
Second, plaintiff argues that certain costs for deposition
transcripts claimed by defendant are not allowable under 28
U.S.C. § 1920(2), because the transcripts were not
necessarily obtained for use in the case.
former argument raises equitable concerns that go beyond the
clerks' authority in ruling on a motion for bill of
costs. See Taniguchi v. Kan.Pacific Saipan. Ltd..
566 U.S. 566, 573 (2012) (describing the taxation of costs by
the clerk as a "clerical matter"). Plaintiff may
raise equitable arguments in a motion for the court to review
the taxation of costs pursuant to Fed.R.Civ.P. 54.
plaintiff s latter argument, he contends that because certain
depositions were not used at trial, the transcripts cannot be
characterized as "necessarily obtained for use in the
litigation." 28 U.S.C. § 1920(2). This argument is
unavailing. "It is not necessary for depositions to be
used in trial or dispositive motion for a party to recover
those costs." Ray Commc'ns, Inc. v. Clear
Channel Commc'ns. No. 2:08-CV-24-BO, 2011 WL
3207805, at *3 (E.D. N.C. July 26, 2011). Rather, in the
Fourth Circuit the costs of a deposition transcript are
generally recoverable "when the taking of a deposition
is reasonably necessary at the time of its taking."
LaVay Corp. v. Dominion Fed. Sav. & Loan Assoc.
830 F.2d 522, 528 (4th Cir. 1987). As defendant notes, the
costs challenged by plaintiff are for transcripts of
depositions noticed by plaintiff himself. This court
previously has awarded costs for a copy of a transcript to a
prevailing party where the deposition was noticed by the
opposing party, finding the transcripts necessarily obtained
for use in the litigation. See PCS Phosphate Co.. Inc. v.
Norfolk S. Corp., No. 4:05-CV-55-D, 2008 WL 1901941, at
*1 (E.D. N.C. Apr. 29, 2008) (awarding costs to prevailing
party for depositions noticed by opposing party). The clerk
does the same here.
defendant's request for fees for the transcripts
necessarily obtained for use in the case, however, includes a
fee for exhibit copies for his deposition, in the amount of
$25.00. This court has construed § 1920(2) and Local
Civil Rule 54.1 as not encompassing charges for exhibit
copies. See Dutton v. Wal-Mart Stores East L.P.. No.
4:11-CV-94-BO, 2015 WL 1643025, at *2 (E.D. N.C. March 13,
2015) ("In construing 28 U.S.C. § 1920 and Local
Civil Rule 54.1, this court has also denied fees for copies
of deposition exhibits, read and sign, rough drafts,
litigation support packages, ASCII disks, shipping, handling
and expedited processing."); Nwaebube v.
Employ't Sec. Comm'n of N.C. . No.
5:09-CV-395-F, 2012 WL 3643667, at *1 (E.D. N.C. Aug. 21,
2012) (disallowing costs of exhibit copies). Accordingly,
defendant's request for transcript fees is granted in
part, and defendant's fees in the amount of $5,
079.74 are taxed pursuant to 28 U.S.C. §
request for costs also include fees for the service of the
summons and subpoena and fees for witnesses, both of which
generally are recoverable. See 28 U.S.C. §
1920(1) and (3). In the itemization for the service of the
summons and subpoena, however, defendant includes witness
fees and mileage costs for two deponents. See Mot. for Bill
of Costs, Ex. B [DE-160-2] (listing "$90.00 (witness fee
mileage)" for M. Robinson and "$45 (witness fee
mileage)" for C. Robinson). Additionally, in the
itemization for witness fees, defendant lists $612.50 for
attendance costs and $83.50 in mileage for witness Clark
Walton. Under § 1920(3), a court may tax "fees and
disbursements for printing and witnesses." "The
witness fee specified in § 1920(3) is defined in 28
U.S.C. § 1821." Crawford Fitting Co. v. J.T.
Gibbons. Inc., 482 U.S. 437, 440 (1987). Section 1821(b)
requires that "[a] witness shall be paid an attendance
fee of $40 per day for each day's attendance."
Additionally, Section 1821 provides for a mileage allowance
based on the rate for official government travel in effect at
the time the travel took place as set by the General Services
Administration. See 28 U.S.C. § 1821(c)(1)(2). Here,
defendant provides no supporting documentation or information
that would allow the clerk to determine if the mileage costs
sought for M. Robinson and C. Robinson are proper under
§ 1821. See Silicon Knights v. Epic Games.
Inc.. 917 F.Supp.2d 503, 513 (E.D. N.C. 2012)
(explaining that litigation costs should be not awarded in
the absence of adequate documentation). Accordingly, the
costs in excess of $40.00 for M. Robinson and C. Robinson are
disallowed. With regard to the requested costs for Mr.
Walton, the mileage costs requested are allowable under
§ 1821. The requested witness fee in excess of $40.00,
however, is not. See Peterson v. Midgette, No.
2:12-CV-60-D, 2015 WL 7681257 at *4 (E.D. N.C. Nov. 25, 2015)
(finding that a prevailing party was not entitled to recover
the expert witness fees the party incurred, but only entitled
to the statutorily mandated $40.00 per witness). Accordingly,
defendant's request for witness fees is granted in part,
and fees in the amount of $203.50 are taxed pursuant to 28
U.S.C. § 1920(3). Additionally, defendant's request
for fees pursuant to 28 U.S.C. § 1920(1) in the amount
of $90.00 is allowed.
defendant's motion for bill of costs is granted part, and
as the prevailing party, defendant is awarded (1) $90.00 in
fees pursuant to 28 U.S.C. § 1920(1); (2) $5, 079.74 in
transcript costs pursuant to § 1920(2); and (3) $203.50
in fees for witnesses pursuant to § 1920(3). Total costs
in the amount of $5, 373.24 are taxed against plaintiff and
shall be included in the judgment.
summary, defendant's motion for costs [DE-160] is GRANTED
in part, and plaintiffs motion for disallowance [DE-162] is
denied. As the prevailing party, defendant Jeffrey Rosier is
awarded (1) $90.00 in fees pursuant to 28 U.S.C. §
1920(1); (2) $5, 079.74 in transcript costs pursuant to
§ 1920(2); and (3) $203.50 in fees for witnesses
pursuant to § 1920(3). Total costs in ...