Breitenbach v. Neiman Marcus Group, Inc.

181 F.R.D. 544, 1998 U.S. Dist. LEXIS 15338, 1998 WL 537329
CourtDistrict Court, N.D. Georgia
DecidedAugust 20, 1998
DocketNo. CIV.A. 1:96-CV-2195-RWS
StatusPublished
Cited by6 cases

This text of 181 F.R.D. 544 (Breitenbach v. Neiman Marcus Group, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Breitenbach v. Neiman Marcus Group, Inc., 181 F.R.D. 544, 1998 U.S. Dist. LEXIS 15338, 1998 WL 537329 (N.D. Ga. 1998).

Opinion

ORDER

STORY, District Judge.

This ease is before the court for consideration of the Brief in Opposition to Defendant’s Bill of Costs [39-1]. Summary judgment was granted to Defendant by an order entered on June 9, 1998. On July 10, 1998, the Clerk taxed costs of $18,502.11 against Plaintiff. Federal Rule of Civil Procedure 54(d)(1) provides that on motion served within 5 days after the clerk taxes costs, costs may be reviewed by the court. Plaintiffs objections were due July 17, 1998. Plaintiff filed his brief in opposition to the bill of costs on July 24, 1998. “Plaintiffs motion is therefore untimely and could be denied on that basis. However, the timeliness requirement is not jurisdictional, and the court may in its discretion consider the tardy motion pursuant to Rule 6(b), Fed. R.Civ.P. The court will therefore consider the plaintiffs motion.” American Key Corp. v. Cumberland Associates, 102 F.R.D. 496 (N.D.Ga.1984).

1. Deposition Transcripts and Copies

This suit was one of three companion employment discrimination suits brought against Defendant. The other two suits were Muriel Gold v. The Neiman-Marcus Group, Inc., 111:96-CV-2197-RWS, which was settled with the parties agreeing to bear their own costs, and Paul Strickland v. The Neiman-Marcus Group, Inc., 1:96-CV-2196-FMH, which was dismissed by Plaintiff without prejudice. The Bill of Costs filed by Defendant included charges for deposition costs, witness attendance fees, photocopying expenses, computerized research costs, service fees (referred to by Defendant as docket fees, filing fees, and marshal fees), and other [546]*546miscellaneous fees. The court will address those charges to which Plaintiff has raised an objection.

1. Deposition Costs

Plaintiff objects to Defendant’s claim for costs associated with the taking of depositions. Plaintiff objects to the taxing of costs for the deposition of Matthew Bridgeman because his testimony was not related to this case. However, the cost of Mr. Bridgeman’s deposition was not included in the Bill of Costs. Therefore, Plaintiffs objection to the taxing of costs for the deposition of Matthew Bridgeman is OVERRULED.

Plaintiff also objects to the taxing of costs for the deposition of Lynn Halpern. Plaintiff contends that Ms. Halpern was a customer of Muriel Gold and that Ms. Halpern’s deposition was taken only in connection with Ms. Gold’s case. Defendant has not refuted this contention in his response. Therefore, Plaintiffs objection to the taxing of costs for the deposition of Lynn Halpern is SUSTAINED, and the Bill of Costs shall be reduced by $162.05.

Plaintiff claims that the remaining depositions were taken for use in all three of the companion cases. He contends that the entire cost of these depositions should not be assessed against him, but that the .costs of these depositions should be shared among the three cases. Plaintiff apparently does not contest that these depositions were necessarily obtained for use in the case, but simply urges that only one-third of the costs be taxed against him.

Defendant points out that Plaintiff has cited no authority which supports his position that these costs should be shared pro rata among the three eases. On the other hand, Defendant cites Ortega v. IBP, Inc., 883 F.Supp. 558 (D.Kan.1995), an employment case in which the court did not reduce the deposition costs taxed against the defendant because the depositions in the case were also used in a companion case. “Fed. R.Civ.P. 54(d) states that costs are ‘allowed as of course’ to the prevailing party. Based on this language and the procedure whereby the Clerk of Court is authorized to tax costs administratively and without Court approval, the Court finds that there exists a presumption that the prevailing party will receive costs.” Desisto College, Inc. v. Town of Howey-in-the-Hills, 718 F.Supp. 906, 910 (M.D.Fla.1989), aff'd 914 F.2d 267 (11th Cir. 1990). The depositions in issue were admittedly necessarily obtained for use in this case, regardless of whether they may also have been useful in the companion cases. Therefore, Defendant is entitled to recover the full costs of these depositions, and Plaintiffs objection to costs for the remaining depositions is OVERRULED.

2. Photocopying Expenses

Defendant claims it is entitled to recover the costs of reproducing relevant documents and exhibits for use in the ease. Defendant submitted with its Bill of Costs an itemized statement showing the documents copied, the number of copies, and the costs of copies. Plaintiff argues that Defendant failed to itemize the photocopy charges with sufficient specificity. Further, Plaintiff contends that Defendant seeks to charge for services not properly included as photocopying.

A prevailing party may be reimbursed for the cost of photocopying attributable to discovery if the charges are for copies of pleadings, correspondence, and other documents tendered to the opposing party. Charges for copies of exhibits and documents filed in support of motions, as well as copies of pleadings, memorandums and motions themselves, are also recoverable. However, charges for copies of original documents possessed by the prevailing party are not taxable. Charges for extra copies and for documents prepared for convenience, preparation, research, or for records of counsel are not taxable. The party seeking to recover photocopy costs must come forward with evidence showing the nature of the documents copied including how they were used or intended to be used in the case. Simply making unsub[547]*547stantiated claims that such documents were necessary is insufficient to permit recovery. Without appropriate record evidence, the court may disallow such costs.

Corsair Asset Management, Inc. v. Mosko-vitz, 142 F.R.D. 347, 352 (N.D.Ga.1992) (citations and quotations omitted).

Having reviewed the statement attached to Defendant’s Bill of Costs, the court finds that the documents for which Defendant seeks to recover costs are appropriate. However, the court finds that the number of copies and the charges for the same are exorbitant. When one calculates the number of pages in each of these documents and the number of copies Defendant was required to provide, the number of copies and charges submitted by Defendant can not be substantiated. The court finds that Defendant is entitled to recover $377.40 for the copies required for the various pleadings and motions listed in Itemization of Costs Included in Defendant’s Bill of Costs [38-1], at III A. 1, 3, 4, and 5.

As to the claim for copies associated with the production of documents and the motion listed at III A. 2 of the Itemization of Costs, Defendant has stated the nature of the documents produced, the number of copies, and the costs. Unlike the costs requested for the other motions and pleadings, the court is unable to discredit the accuracy of this charge from the record. Plaintiff has knowledge as to the documents produced to him during discovery.

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Cite This Page — Counsel Stack

Bluebook (online)
181 F.R.D. 544, 1998 U.S. Dist. LEXIS 15338, 1998 WL 537329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breitenbach-v-neiman-marcus-group-inc-gand-1998.