Roberts v. Homelite Division of Textron, Inc.

117 F.R.D. 637, 1987 U.S. Dist. LEXIS 16069, 1987 WL 4599
CourtDistrict Court, N.D. Indiana
DecidedNovember 25, 1987
DocketCiv. No. H 85-183
StatusPublished
Cited by16 cases

This text of 117 F.R.D. 637 (Roberts v. Homelite Division of Textron, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roberts v. Homelite Division of Textron, Inc., 117 F.R.D. 637, 1987 U.S. Dist. LEXIS 16069, 1987 WL 4599 (N.D. Ind. 1987).

Opinion

ORDER

ANDREW P. RODOVICH, United States Magistrate. ‘

This matter is befpre the Court on the Motion for Bill of Costs filed by the defendant, Homelite Division of Textron, Inc., on May 27, 1987. For the reasons set forth below, the motion is GRANTED in the amount of $4,382.25.

Background

On February 14, 1985, the plaintiffs filed a complaint against the defendant, Homelite Division of Textron, Inc. (hereafter Homelite), seeking compensation for the personal injuries sustained by Wilfred Roberts (hereafter Roberts) while attempting to start a lawn mower. The complaint alleged that Roberts, an authorized dealer of Jacobsen lawn mowers, lost a portion of his left hand while servicing a lawn mower prior to its sale. Roberts alleged that Homelite was negligent in the design and manufacture of the lawn mower.

The jury trial commenced on April 27, 1987. The underlying facts supporting Roberts’ claim disclosed that on July 13, 1983, Roberts received a Jacobsen lawn mower at his place of business. Upon unpacking the lawn mower, Roberts attempted to start it, but the mower neither started nor turned over. Roberts then placed the, lawn mower on a workbench, and with the aid of Paul Kurzja, made an attempt to start the engine. While on the workbench, the mower started causing it to “lurch” forward and to strike a portion of Roberts’ left hand, resulting in a serious injury. On May 6, 1987, the jury returned a verdict in favor of Homelite.

Prior to trial, Homelite made an offer of judgment pursuant to Federal Rule of Civil Procedure 68 to both plaintiffs in the amount of $25,000.00. That offer was rejected by the plaintiffs. Homelite now seeks the taxation of costs pursuant to Federal Rule of Civil Procedure 54(d) in the amount of $8,485.25.

Discussion

Rule 54(d) provides for an award of costs in favor of the party who prevails in the litigation. Absent a showing of ‘misconduct on the part of the prevailing party, or indigency on the part of the losing party, costs must be awarded by the trial court. See generally Smith v. DeBartoli, 769 F.2d 451, 453 (7th Cir.1985); Morris v. Spratt, 768 F.2d 879, 884 (7th Cir.1985); Burroughs v. Hills, 741 F.2d 1525, 1533 (7th Cir.1984); and Badillo v. Central Steel and Wire Company, 111 F.2d 1160, 1165 (7th Cir.1983).

[639]*63928 U.S.C. § 1920 enumerates the costs which may be recovered:

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

In State of Illinois v. Sangamo Construction Company, 657 F.2d 855 (7th Cir.1981), the court discussed the allowance of costs and stated:

Rule 54(d) of the Federal Rules of Civil Procedure grants the district court, in the absence of other statutory authority, discretionary authority to award costs to the prevailing party. But not all expenses incurred by a party in connection with a lawsuit constitute recoverable costs. Indeed, major expenses such as attorneys’ fees, investigatory services, and most travel and subsistence expenses generally are not recoverable “costs.” Courts are to award, except in limited exceptional situations, only those expenses specifically recognized by statute. (Footnotes and citations omitted) 657 F.2d at 864.

One issue must be addressed before determining the amount of costs to be awarded to Homelite. Prior to trial, Homelite made an offer of judgment pursuant to Rule 68, and the plaintiffs rejected that offer. Homelite now contends that since the judgment “is not more favorable than the offer” made to the plaintiffs, its Rule 68 offer affects the award of costs in this case. Delta Airlines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981) disposed of this question. In Delta Airlines, the defendant made a nominal offer of judgment to the plaintiff prior to trial. The plaintiff rejected the offer, but the defendant prevailed at trial. The Supreme Court held that Rule 68 did not apply since the defendant, and not the plaintiff, recovered the judgment:

In sum, if we limit our analysis to the text of the Rule itself, it is clear that it applies only to offers made by the defendant and only to judgments obtained by the plaintiff. It therefore is simply inapplicable to this case because it was the defendant that obtained the judgment.
450 U.S. at 352; 101 S.Ct. at 1150; 67 L.Ed.2d at 292.

Therefore, Homelite’s offer of judgment was meaningless for purposes of assessing costs.

Deposition Expenses

The plaintiffs object to the taxation of deposition costs in the amount of $2,387.15 and correctly point out that six of the witnesses who were deposed did not testify at trial. Under § 1920(2), a party may recover the court reporter expenses incurred during a deposition if the deposition was reasonably necessary for the preparation of the case. In Hudson v. Nabisco Brands, Inc., 758 F.2d 1237 (7th Cir.1985) the court held that a party may recover deposition expenses as costs even if the deposition was not used at trial:

[T]he generally accepted view, and the one adopted by this circuit, is that introduction of a deposition at trial is not a prerequisite for finding that it was necessary to take the deposition.
758 F.2d at 1243.

See generally Wahl v. Carrier Manufacturing Company, Inc., 511 F.2d 209, 217 (7th Cir.1975); McHenry v. Joseph T. Ryerson Company, 104 F.R.D. 478, 481 (N.D.Ind.1985); Zdunek v. Washington Metropolitan Area Transit Authority, 100 F.R.D. 689, 694 (D.C.1983); and Cross v. General Motors Corporation, 563 F.Supp. 368, 370 (E.D.Missouri 1982).

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Bluebook (online)
117 F.R.D. 637, 1987 U.S. Dist. LEXIS 16069, 1987 WL 4599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-homelite-division-of-textron-inc-innd-1987.