Evans v. Fuller

94 F.R.D. 311, 34 Fed. R. Serv. 2d 835, 1982 U.S. Dist. LEXIS 14494
CourtDistrict Court, W.D. Arkansas
DecidedJune 2, 1982
DocketCiv. A. Nos. 81-5021, 81-5022
StatusPublished
Cited by9 cases

This text of 94 F.R.D. 311 (Evans v. Fuller) is published on Counsel Stack Legal Research, covering District Court, W.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans v. Fuller, 94 F.R.D. 311, 34 Fed. R. Serv. 2d 835, 1982 U.S. Dist. LEXIS 14494 (W.D. Ark. 1982).

Opinion

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

Introduction

This case arose under 28 U.S.C. § 1332, based upon complete diversity of citizenship, for personal injuries received in an automobile accident which occurred in the state of Arkansas. Upon trial of the issues the jury returned a verdict in favor of the plaintiffs against the defendant, Haskell Edgar Fuller. The jury found no liability on the part of defendant, Swift Transportation Company, Inc. The jury awarded plaintiff, Nicholas Evans Cato, the sum of $500,000.00; plaintiff, Betty Evans, the sum of $10,000.00; and plaintiff, Ronnie Carson, the sum of $50,000.00. The verdict was read May 1, 1982, and judgment was entered accordingly on May 4, 1982. On May 13, 1982, plaintiffs filed their Bill of Costs, seeking to have costs taxed against defendant Fuller in the sum of $13,476.60. Defendant Fuller has timely responded, and the matter of costs is now ripe for adjudication.

DISCUSSION

Plaintiffs seek to recover as costs (1) Clerk and Marshal fees in the amount of $118.40; (2) Court Reporter fees for transcripts necessarily obtained for use in the case in the sum of $1,321.80; (3) costs incident to the taking of depositions in the amount of $1,005.20; and (4) witness fees of $11,031.20.

Rule 54(d), Fed.R.Civ.P., provides:

Except when express provision therefor is made either in a statute of the United [313]*313States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs

Three related concepts must be distinguished in this context — “costs,” “fees” and “expenses.” “Costs” are those charges that one party has incurred and is permitted to have reimbursed by his opponent as part of the judgment.

“Fees” are those amounts paid to the court or one of its officers for particular charges that typically are delineated by statute. These generally include docket fees, marshal’s charges, and witness fees.

“Expenses” include all expenditures actually made by a litigant in connection with the action. See generally, Wright & Miller, Federal Practice & Procedure, § 2666.

Other than when the matter is controlled by a federal statute or rule, the court is vested with a sound discretion by Rule 54(d). Farmer v. Arabian Amer. Oil Co., 379 U.S. 227, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964); Boyd v. Ozark Air Lines, Inc., 568 F.2d 50 (8th Cir. 1977).

In Farmer, supra, the United States Supreme Court warned that Rule 54(d) does not give the court unrestrained discretion. The Court stated, “the discretion given district judges to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute.” Thus, the safest course to follow when costs not expressly authorized by statute are involved is to seek prior judicial approval. Cox v. Maddux, 285 F.Supp. 876 (W.D.Ark.1968); Euler v. Waller, 295 F.2d 765 (10th Cir. 1961).

The general federal statutes on costs and fees are 28 U.S.C. §§ 1911 through 1929. The statute of most general applicability is 28 U.S.C. § 1920. It provides:

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 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.

A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.

Since defendant Fuller does not argue the applicability of Rule 68, Fed.R.Civ.P., the Court will decide the matter without reference to same. The particular items plaintiffs seek to have taxed as costs will be individually discussed in turn.

Clerk and Marshal Fees

Both parties have agreed to the amount and propriety of this item of “costs and fees.” Accordingly, the Court finds that defendant Fuller should pay the Clerk’s and Marshal’s fees of $118.40.

Court Reporter Fees For Transcripts Necessarily Obtained For Use In The Case

Plaintiffs’ itemized statement of court reporter fees includes the following: Court Reporter, Brenda Flora, for the Self and Elam depositions, $256.00; deposition fees for certain depositions of employees of Rockwell International in Detroit, $379.83; deposition fees for depositions of Tatistcheff, Winston and Hoehmuth, $607.97; and $78.99 for the prior Fuller transcript.

Not included was the fee for the Runnels video deposition.

Of these persons, only the depositions. of Hoehmuth and Dr. Runnels were offered into evidence.

There is general agreement that the expenses of a deposition may be taxed as costs when it was received in evidence, but even [314]*314this is not always true. Compare Cox v. Maddux, 285 F.Supp. 876 (W.D.Ark.1968), and Banks v. Chicago Mill & Lumber Co., 106 F.Supp. 234 (E.D.Ark.1950). Attorney’s fees associated with depositions are not taxable costs. Wahl v. Carrier Mfg. Co., 511 F.2d 209 (7th Cir. 1975). It has been held that the expense of a deposition is taxable even though not used at the trial, if it seemed necessary at the time it was taken. See Koppinger v. Cullen-Schiltz & Assoc., 513 F.2d 901 (8th Cir. 1975). However, none of the factors indicating the propriety of this are present here. See generally Wright & Miller, Federal Practice & Procedure, § 2676, p. 204. Indeed, some courts refuse by rule to allow taxation for such items. See Local Rule 70(7), District Court of Montana.

Thus, only those reporter fees incurred with reference to the Hochmuth and Runnels depositions will be allowed as costs. Inasmuch as the Tatistcheff, Winston and -Hochmuth depositions were combined in plaintiffs’ itemization, plaintiffs will need to separately itemize the fee for Hochmuth’s deposition.

Plaintiffs also seek to have taxed as costs certain expenses “incident to taking of depositions.” These include airplane tickets to Little Rock, $151.60; New York, $524.00; and Detroit, $250.00. Plaintiffs seek further to tax the cost of photographs incident to certain depositions, $80.00.

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Bluebook (online)
94 F.R.D. 311, 34 Fed. R. Serv. 2d 835, 1982 U.S. Dist. LEXIS 14494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-fuller-arwd-1982.