Cowden v. BNSF Railway Co.

991 F. Supp. 2d 1084, 2014 WL 107844, 2014 U.S. Dist. LEXIS 519
CourtDistrict Court, E.D. Missouri
DecidedJanuary 3, 2014
DocketCase No. 4:08CV01534 ERW
StatusPublished
Cited by16 cases

This text of 991 F. Supp. 2d 1084 (Cowden v. BNSF Railway Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cowden v. BNSF Railway Co., 991 F. Supp. 2d 1084, 2014 WL 107844, 2014 U.S. Dist. LEXIS 519 (E.D. Mo. 2014).

Opinion

MEMORANDUM AND ORDER

E. RICHARD WEBBER, Senior District Judge.

This matter comes before the Court on Plaintiff Kevin D. Cowden’s Motion for Bill of Costs [ECF No. 252].

I. BACKGROUND

This case arises out of injuries Plaintiff sustained while working as a conductor on a locomotive for Defendant BNSF Railway Company. On November 8, 2013, a jury returned a verdict in favor of Plaintiff in the amount of $1,671,253.90. The Court subsequently entered judgment on the verdict. On December 3, 2013, Plaintiff filed a Motion for Bill of Costs [ECF No. 252], asking the Court to tax Defendant $18,597.51. Defendant responded on De[1087]*1087cember 11, 2013, objecting to various amounts claimed by Plaintiff. [ECF No. 255]. Subsequently, Plaintiff filed his Reply Memorandum in Support of Plaintiffs Motion to Assess Costs Against Defendant [ECF No. 260], In this filing, Plaintiff waived $8,749.66 of the sum originally sought, rendering many of Defendant’s objections moot. Plaintiff now claims $9,847.35 in costs, representing fees of the Clerk, fees of the Court Reporter, fees for witnesses, and fees for exemplification and copies of papers. For the sake of clarity, the Court limits its discussion to amounts comprising the $9,847.35 currently sought by Plaintiff; unless otherwise stated, the Court will not discuss waived amounts.

II. DISCUSSION

Rule 54(d) of the Federal Rules of Civil Procedure provides that “costs — other than attorney’s fees — should be allowed to the prevailing party.” See also In re Derailment Cases, 417 F.3d 840, 844 (8th Cir.2005) (“A prevailing party is presumptively entitled to recover all of its costs.”). Pursuant to 28 U.S.C. § 1920, the Court may tax costs for:

(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.

The Court may not award costs other than those authorized by § 1920, because this section “imposes rigid controls on cost-shifting in federal courts[.]” Brisco-Wade v. Carnahan, 297 F.3d 781, 782 (8th Cir.2002) (internal quotations omitted). Upon objection by the opposing party as to authorized costs, however, the Court may exercise its discretion to grant or deny costs. Pershern v. Fiatallis North America, Inc., 834 F.2d 136, 140 (8th Cir.1987).

In response to Plaintiffs Motion, Defendant has a number of Objections. Specifically, Defendant objects to taxation of certain fees of the Court Reporter for transcripts, witness fees, and fees for exemplification and the costs of making copies. For reasons discussed infra, the Court will tax Defendant $7,870.65 in costs.

A. Fees of the Clerk

Plaintiff incurred $350.00 in fees of the Clerk. Defendant does not object to taxation of this amount. The Court will therefore tax Defendant $350.00.

B. Fees of the Court Reporter for Transcripts 1

Plaintiff seeks to recover $4,808.382 in costs for transcripts of various depositions. In determining whether to award the costs of a deposition, “the underlying inquiry is whether the deposi[1088]*1088tions reasonably seemed necessary at the time they were taken.” Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 363 (8th Cir.1997) (internal quotations omitted). While deposition costs are unrecoverable if taken solely for discovery or investigative purposes, Ryther v. KARE 11, 864 F.Supp. 1525, 1534 (D.Minn.1994), “if the depositions were actually introduced in evidence or used at trial for impeachment purposes, then it is proper to conclude they were necessarily obtained for use in the case.” Frazier v. IBP, Inc., No. C97-0023, 1999 WL 33655745, at *10 (N.D.Iowa Feb. 2, 1999). For reasons discuss infra, the Court will award $3,145.93 in costs in this category.

1. Deposition of Plaintiff Totaling $306.00

Plaintiff seeks to recover $306.00, representing $303.00 for the cost of Plaintiffs deposition and $3.00 for corresponding exhibits. Defendant argues, because the deposition was taken for discovery purposes, it was “merely useful” and not necessary for use in the case. Plaintiff responds he anticipated Defendant would use his deposition for impeachment at trial, and it was therefore reasonably necessary for him to possess a copy.

The Court will tax this cost to Defendant. Defendant relies on Hansen v. Bradley, 114 F.Supp. 382 (D.C.Md.1953), but this case is unpersuasive. In Hansen, a District of Maryland case from 1953, the plaintiff prevailed at trial and sought recovery of the cost for her own deposition. Id. at 385. The court denied this request, because the plaintiff testified before the jury, and her deposition was neither admissible nor offered at trial. Id. Likewise, the remaining cases cited by Defendant merely stand for the proposition that parties may not recover costs for depositions used solely for exploratory purposes. See, e.g., Echostar Satellite Corp. v. Advanced Commc’ns Corp., 902 F.Supp. 213, 217 (D.Colo.1995); Crandall v. City and Cnty. of Denver, 594 F.Supp.2d 1245, 1248 (D.Colo.2009).

Here, however, Plaintiff’s deposition was not merely investigative. Instead, Plaintiff correctly predicted Defendant would use his deposition for impeachment purposes. Thus, it reasonably necessary for Plaintiff to possess a copy of the deposition. The cost of Plaintiff’s deposition, $303.00, will be taxed to Defendant.

Furthermore, the Court will tax Defendant an additional $3.00, representing the cost of copies of exhibits. As Plaintiff notes, Defendant has failed to cite any case supporting its blanket proposition that copies of deposition exhibits constitute unrecoverable costs. Rather, Defendant cites cases merely establishing parties may not recover costs of exhibits made for the convenience of counsel. See, e.g., Am. Guar. & Liab. Ins. Co. v. U.S. Fid. & Guar. Co., No. 4:06CV655 RWS, 2010 WL 1935998 (E.D.Mo. May 10, 2010), Clark v. Baka, No. 4:07CV477 DPM, 2011 WL 2881710 (E.D.Ark. July 19, 2011).

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991 F. Supp. 2d 1084, 2014 WL 107844, 2014 U.S. Dist. LEXIS 519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cowden-v-bnsf-railway-co-moed-2014.