Andrews v. Suzuki Motor Co.

161 F.R.D. 383, 1995 U.S. Dist. LEXIS 13448, 1995 WL 317709
CourtDistrict Court, S.D. Indiana
DecidedFebruary 3, 1995
DocketNo. NA92-43-C
StatusPublished
Cited by3 cases

This text of 161 F.R.D. 383 (Andrews v. Suzuki Motor Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrews v. Suzuki Motor Co., 161 F.R.D. 383, 1995 U.S. Dist. LEXIS 13448, 1995 WL 317709 (S.D. Ind. 1995).

Opinion

ENTRY

GODICH, United States Magistrate Judge.

This cause is before the Court on Defendants’ BILL OF COSTS, PLAINTIFFS’ OBJECTION TO DEFENDANTS’ BILL OF COSTS, and DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR BILL OF COSTS AND IN RESPONSE TO PLAINTIFFS’ OBJECTION. The Court, having reviewed the Bill of Costs and considered Plaintiffs’ objections, and being duly advised, now finds that several of Plaintiffs’ objections are well taken, and accordingly, allows Defendants’ Bill of Costs in part.

The Federal Rules of Civil Procedure instruct the Court that “costs shall be allowed as of course to the prevailing party unless the court otherwise directs.” Rule 54(d). Congress has set forth, in 28 U.S.C. § 1920, the costs to be awarded:

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 of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the ease;
(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.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.

Whether or not to award specific costs is within the discretion of the court, but the Seventh Circuit has made clear that if the cost is listed in § 1920, a presumption exists that it will be taxed; conversely, if the cost is not listed in § 1920, the court should exercise its discretion sparingly in taxing such a cost. Hudson v. Nabisco Brands, Inc., 758 F.2d [385]*3851237, 1242 (7th Cir.1985). In fact, a somewhat subtle (and unresolved) debate rages on in this circuit whether the trial court has any discretion to tax the cost of something not expressly enumerated by § 1920 (or its equivalent). Compare Northbrook Excess and Surplus Insurance Co. v. Procter & Gamble Co., 924 F.2d 633, 643 (7th Cir.1991) with Commercial Credit Equipment Corp. v. Stamps, 920 F.2d 1361, 1368 n. 10 (7th Cir. 1990).

Plaintiffs have objected to the taxing of certain expenses itemized in Defendants' BILL OF COSTS. Some of these objections have merit. Further, upon examination the Court finds it necessary, sua sponte, to decline to tax certain costs requested by Defendants. The Court’s declinations and Plaintiffs’ objections are each dealt with below.

1. WITNESS FEES1

Costs Requested by Defendants:

Witness fees in the amount of $65.00 each for witnesses Kenneth Saltzgaver and Carl LaHue. Witness fees in the amount of $893.34 for expert witness Kris D. Kubly and $663.16 for expert witness P. Robert Knaff.

Plaintiffs’ Objection:

None.

Court’s Disposition:

Witnesses are entitled to a per diem statutory amount of $40.00 for attendance in court or appearance at a deposition. 28 U.S.C. § 1821. Section 1821 also provides for the reimbursement of certain travel expenses and the payment of a. subsistence allowance to those witnesses who must stay overnight as a result of having to testify. Expert witnesses are treated no differently by § 1821 than other fact witnesses; expert witness fees are therefore not taxable. Chicago College of Osteopathic Medicine v. George A. Fuller Co., 801 F.2d 908 (7th Cir. 1986).

Kenneth Saltzgaver and Carl LaHue each testified only one day. Defendants have not submitted the requisite documentation to entitled them to reimbursement for mileage or other expenses. They are entitled to only $40.00 each.

Defendants’ BILL OF COSTS lists a $50.00 cab fare charge for Kris Kubly, which is incorrect. Kubly’s invoice lists the fare at $28.00.2 Only $28.00 will be taxed.

Defendants seek reimbursement for food and lodging charges incurred by Kubly and Robert Knaff. Defendants are not entitled to be reimbursed for these expenses, however, because the statute provides for a subsistence allowance and not reimbursement. 28 U.S.C. § 1821(d). The per diem allowance for Federal Government employees at the time of trial in New Albany was $71.00. Kubly and Knaff are thus entitled to $71.00 for each day it was necessary for them to stay in New Albany in order to testify. As Defendants seek two days’ per diem for Kubly and one for Knaff, and the Court finds this reasonable, it follows that Kubly would be entitled to two nights and Knaff to one night. Thus, Defendants will be entitled to tax $142.00 for Kubly and $71.00 for Knaff in lieu of the lodging and meal expenses sought.

All other transportation expenses for Ku-bly and Knaff sought by Defendants are reasonable and will be taxed.

In accordance with the foregoing, the Court will disallow $142.97 of Defendants’ $1,686.63 bill in this category; this allows $1,543.53 in expenses to be taxed.

2. COPIES

Defendants seek reimbursement for the cost of obtaining various medical and other records, for the cost of enlarging certain exhibits for trial, for the cost of a ground survey, for the cost of storing and transporting the exemplar ATV, and for the cost of creating and copying video tapes intended as exhibits.

The cost of obtaining a survey is not a copying expense. The cost of storing and [386]*386transporting the exemplar ATV is not a copying expense. Only the cost of copies of exhibits that were actually introduced into evidence should be taxed.

Cowi’s Disposition:

Plaintiffs’ first objection is well-taken. The expense of a survey is essentially payment for a service, not for the cost of reproducing a piece of paper with a map on it. It does not fall within § 1920.

Plaintiffs’ second objection is likewise well-taken for the same reason. The shipping and storage of an ATV, even one used as an exhibit, is not an exemplification or a copy of a paper. See 28 U.S.C. § 1920(4).

Plaintiffs’ third objection here is, on the other hand, not well-taken.

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Cite This Page — Counsel Stack

Bluebook (online)
161 F.R.D. 383, 1995 U.S. Dist. LEXIS 13448, 1995 WL 317709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrews-v-suzuki-motor-co-insd-1995.