Eberhart v. Novartis Pharmaceuticals Corp.

282 F.R.D. 697, 2012 U.S. Dist. LEXIS 158418, 2012 WL 1951761
CourtDistrict Court, N.D. Georgia
DecidedMay 29, 2012
DocketNo. 1:08-cv-2542-WSD
StatusPublished
Cited by3 cases

This text of 282 F.R.D. 697 (Eberhart v. Novartis Pharmaceuticals Corp.) 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
Eberhart v. Novartis Pharmaceuticals Corp., 282 F.R.D. 697, 2012 U.S. Dist. LEXIS 158418, 2012 WL 1951761 (N.D. Ga. 2012).

Opinion

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., District Judge.

This matter is before the Court on Plaintiffs Objection to Bill of Costs [121] and Plaintiffs Motion for Review of the Clerk’s Taxation of Costs [123].

I. BACKGROUND

On December 13, 2011, the Clerk of Court taxed costs against Plaintiff under 28 U.S.C. § 1920 following entry of judgment against Plaintiff in this pharmaceutical products liability action. The costs assessed included:

a. Fees for service of summons and subpoena: $430.00
b. Fees for printed or electronically recorded transcripts necessarily obtained for use in the case: $9,054.10
e. Fees for witnesses: $604.00;
d. Fees for copies: $1,500.06; and,
e. Other costs (fees for medical records acquisition): $43,015.90

The fees claimed aggregated $54,604.06.

Plaintiff first asserts that the fees assessed impose a financial hardship on the Plaintiff and that they should be denied in their entirety. Alternatively, Plaintiff contends that certain of the claimed costs should be disallowed, or reduced. Plaintiff generally claims that the transcript fees were not the cost to deliver, handle and process the transcripts. Second, Plaintiff claims the copies for which reimbursement is requested were for copies not required by the case but which were for the convenience of Defendant. Finally, Plaintiff objects to the costs for acquisition of records as not a compensable cost under Section 1920.

II. DISCUSSION

Rule 54(d)(1) of the Federal Rules of Civil Procedure provides, unless the Court orders otherwise, that “costs—other than attorney’s fees—should be allowed to the prevailing party.” Fed.R.Civ.P. 54(d)(1). The costs permitted to be taxed against an opposing party are listed in 28 U.S.C. § 1920 and include: (1) fees of the clerk and marshal; (2) court reporter fees 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 any materials necessarily obtained for use in the case; (5) docket fees; and (6) compensation for court-appointed experts. Categories 1, 2, 3 and 4 are at issue here. Whether to award allowable costs and in what amount is a matter within the Court’s discretion. 10 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2668 (3d ed. 1998). The Court has reviewed Plaintiffs challenges to the costs assessed against her and considers these challenges separately below.

A. Hardship

Federal Rule of Civil Procedure 54(d)(1) expressly states that “costs—other than attorney fees—shall be allowed to the prevailing party” in a civil case. Fed.R.Civ.P. 54(d)(1). This provision “establishes a presumption that costs are to be awarded to the prevailing party but vests the district court with discretion to decide otherwise.” Delta Air Lines, Inc. v. August, 450 U.S. 346, 351, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981). “To defeat the presumption and deny full costs, a district court must have and state a sound basis for doing so.” Head v. Medford, 62 F.3d 351, 354 (11th Cir.1995); Gilchrist v. Bolger, 733 F.2d 1551, 1557 (11th Cir.1984).

“[A] non-prevailing party’s financial status is a factor that a district court may, but need not, consider in its award of costs pursuant to Rule 54(d).” Chapman v. AI Transp., 229 F.3d 1012, 1038 (11th Cir.2000). “If a district court in determining the amount of costs to award chooses to consider the non-prevailing party’s financial status, it should require substantial documentation of [700]*700a true inability to pay.” Id. at 1039 (citing McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir.1994) (absence of documentary support and reliance on general, self-serving statements insufficient)).

Even if the Court were inclined to consider Plaintiffs financial status, the superficial information provided by Plaintiff here fails to show that Plaintiff does not have funds to pay the costs assessed. Plaintiff acknowledges that she has real estate holdings she inherited from her husband and there is an absence of evidence that she does not have access to property or assets to satisfy a cost award in this action. Her general, self-serving statements of hardship are not a reason to rebut the presumption that the costs be allowed.

Plaintiff also argues that Plaintiff was “among a group of MDL plaintiffs that succeeded in convincing the MDL court that there were genuine issues of material fact as to whether [Defendant] properly warned of the risks of ostenecrosis of the jaw (‘ONJ’) and whether Aredia and/or Zometa caused or contributed to the development of ONJ.” PL’s Mot. for Review at 5. Plaintiff essentially argues that Plaintiffs unspecific contribution to the MDL case was a kind of “prevailing” in the case that should urge the Court to allow the presumption of an award of costs to be rebutted. The Court disagrees. Costs are presumed to be awarded to the party who prevailed in a case. The Defendant was the undisputed prevailing party here and is entitled, under Rule 54(d)(1), to have costs to taxed against the Plaintiff. The question remains whether the costs claimed are awardable. The Court now turns to that question.

B. Costs Claimed

Plaintiff disputes that the costs claimed by Defendant qualify as costs that may be awarded. It is Plaintiffs burden to prove that costs are not allowed to be awarded. Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639 (11th Cir.1991). The Court agrees, as explained below, that certain costs are, and others are not, allowed in the amounts claimed.

(a) Witness Fees

Plaintiff objects to the fees for service of summons and subpoena, and to witness fees. Plaintiff argues that “there has been no showing that a witness subpoena, much less a witness fee and a mileage check, was necessary to procure” the witnesses’ attendance at their depositions. PL’s Mot. to Review at 8. A prevailing party is entitled to claim the costs for witness fees. The right to claim fee costs is unqualified.

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Bluebook (online)
282 F.R.D. 697, 2012 U.S. Dist. LEXIS 158418, 2012 WL 1951761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eberhart-v-novartis-pharmaceuticals-corp-gand-2012.