Francisco v. Verizon South, Inc.

272 F.R.D. 436, 2011 U.S. Dist. LEXIS 20684, 2011 WL 781933
CourtDistrict Court, E.D. Virginia
DecidedMarch 2, 2011
DocketNo. 3:09cv737-DWD
StatusPublished
Cited by12 cases

This text of 272 F.R.D. 436 (Francisco v. Verizon South, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Francisco v. Verizon South, Inc., 272 F.R.D. 436, 2011 U.S. Dist. LEXIS 20684, 2011 WL 781933 (E.D. Va. 2011).

Opinion

MEMORANDUM OPINION

DENNIS W. DOHNAL, United States Magistrate Judge.

This matter is before the Court by consent of the parties pursuant to 28 U.S.C. § 636(c)(1) on Defendant’s motion for taxation of bill of costs (docket no. 77) (“Bill of Costs”) and Plaintiffs objections thereto (docket no. 78).1 The Court has thoroughly reviewed the submissions and finds that oral argument would not aid in the decisional [440]*440process. For the reasons discussed herein, Plaintiffs objections are SUSTAINED, in part, and OVERRULED, in part. Accordingly, Defendant’s bill of costs is GRANTED, in part, and DENIED, in part, and judgment for the Defendant shall be entered in the amount of four thousand three hundred forty eight and 70/100 dollars ($4,348.70).

I. FACTUAL AND PROCEDURAL HISTORY

Verizon South, Inc. (“Verizon” or “Defendant”), which prevailed on summary judgment in this case, seeks costs in the amount of seven thousand five hundred sixty four and 40/100 dollars ($7,564.40), the total amount of which includes service of process fees, fees for printed or electronically recorded transcripts, printing and copying fees, and other costs. Plaintiff objects, arguing that the Bill of Costs is not adequately itemized and that the costs are not properly taxable pursuant to 28 U.S.C. § 1920.

Defendant’s Bill of Costs contains the following items:

(1) Fees for service of summons and $ 25.00 subpoena
(2) Fees lor printed or electronically $4,351.40 recorded transcripts
(3) Fees and disbursements for printing $ 763.50
(4) Other costs $2,424.50
TOTAL: $7,564.40

Amy D. Francisco (“Francisco” or “Plaintiff’) filed an Opposition to Defendant’s Bill of Costs on December 6, 2010 (docket no. 78) (“PL’s Opp’n”), and Defendant responded thereto on December 16, 2010 (docket no. 79) (“Def.’s Resp.”). Plaintiff then filed an Objection to Defendant’s Response (docket no. 80) (“PL’s Obj.”), arguing that Defendant’s Response was untimely.

II. ANALYSIS

A. Timeliness of Defendant’s Response and Rule 11 Sanctions

Plaintiff has moved to strike Defendant’s response to the objections as untimely pursuant to this Court’s local rules,2 and Defendant asserts that such motion is sanctionable pursuant to Fed.R.Civ.P. 11. The Court, exercising its discretion, denies both motions.

First, regarding the timeliness of Defendant’s response, Plaintiff fails to make any showing of prejudice as a result of the alleged untimely filing.3 As a general rule, enforcement of local rules is within the sound discretion of the Court. Michael v. Sentara Health Sys., 939 F.Supp. 1220, 1225 n. 3 (E.D.Va.1996). In Jefferson v. Briner, No. 3:05cv652, 2006 WL 2850648, at *1 (E.D.Va. Sept. 29, 2006), this Court exercised its discretion to substantively consider untimely objections to a bill of cost. Likewise, the Court denies Plaintiffs motion to strike Defendant’s response to the objections as untimely, and will consider the substantive arguments raised therein.4

[441]*441Second, regarding Defendant’s assertion of sanctions under Rule 11, Defendant has not sufficiently established its attempt to confer in good faith, as required by the “safe harbor” clause in Rule 11. See Fed.R.Civ.P. 11(c)(2). Rule 11(b)(2) permits a party to correct or withdraw the challenged paper, claim, defense, contention or denial within twenty one (21) days of service. There is no showing here that the parties attempted to confer regarding the request for sanctions. Accordingly, the Court having discretion whether to issue sanctions under Rule 11, declines to do so here. See Ost-West-Handel Bruno Bischoff GmbH v. Project Asia Line, Inc., 160 F.3d 170, 177 (4th Cir.1998); Edmond v. Consumer Protection Division, 934 F.2d 1304,1313 (4th Cir.1991).

B. Bill of Costs

Fed.R.Civ.P. 54(d) allows a prevailing party to recover costs, other than attorney’s fees. Rule 54 does not grant the district court “unrestrained discretion to reimburse the winning litigant for every expense he has seen fit to incur.” Farmer v. Arabian Am. Oil. Co., 379 U.S. 227, 234, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964). Accordingly, the court may only tax those costs authorized by statute. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 444-45, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987). However, the court has wide latitude to award costs, so long as the costs are enumerated in the general taxation-of-costs statute, 28 U.S.C. § 1920. Id. Moreover, the Fourth Circuit has held that Rule 54(d)(1) creates a presumption that the prevailing party will be awarded costs. Fells v. Virginia Department of Transportation, 605 F.Supp.2d 740, 742 (E.D.Va.2009) (citing Cherry v. Champion Int.’l Corp., 186 F.3d 442, 446 (4th Cir.1999)).

The statute identifies the following as costs a court may tax: 1) fees of the clerk and the 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 28 U.S.C. § 1923; 6) compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under 28 U.S.C. § 1828. See 28 U.S.C. § 1920.

Since summary judgment was granted in favor of Verizon, it is the prevailing party entitled to recover costs. However, as the prevailing party, Verizon bears the burden of showing that the requested costs are allowable under § 1920. See Cofield v. Crumpler, 179 F.R.D. 510, 514 (E.D.Va. 1998). Once the prevailing party has met this burden, the burden shifts to the party or parties that did not prevail to identify any impropriety of taxing the proposed costs. Id.

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272 F.R.D. 436, 2011 U.S. Dist. LEXIS 20684, 2011 WL 781933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/francisco-v-verizon-south-inc-vaed-2011.