Lamothe Law Firm attorney Richard Martin recently published an article in the Louisiana Association for Justice publication, Louisiana Advocates. Mr. Martin is a veteran trial lawyer with over 30 years of experience handling personal injury and wrongful death cases including maritime, Jones Act, automobile, product liability, aviation and pharmaceutical claims. Mr. Martin has tried and won multi-million dollar litigation cases during his career in federal and state courts. He has particular experience in federal multi-district litigation and federal and state court class actions, and has also served on numerous mass tort case management committees and subcommittees.
TAXING COSTS IN FEDERAL COURT
There are occasions when a claim against a defendant must be tried. If your case is in federal court, various costs are incurred through trial, which include, e.g., expert reports, expert “appearance fees” for attending trial, fact witness fees and mileage, subpoenas, copies of materials, etc. Some costs may be recovered as taxable costs, some cannot. Your client will have his/her recovery reduced by those costs which are not taxable, so the client needs to know what items will ultimately come out of his own pocket.
In federal litigation, the award of costs is governed by federal law.1 Fed. R. Civ. P. 54(d)(1) is the procedural authority for awarding costs. It provides that unless a federal statute, the Federal Rules of Civil Procedure, or a court order provides otherwise, costs — other than attorney’s fees — should be allowed to the prevailing party. While there is “a strong presumption” in favor of awarding costs to a prevailing party, and “a district court may neither deny nor reduce a prevailing party’s request for cost[s] without first articulating some good reason for doing so,”2 the court will not award costs unless it first determines that they are allowable and reasonable, both in amount and necessity to the litigation.3
Federal courts may only award those costs articulated in 28 U.S.C. §1920 absent explicit statutory or contractual authorization to the contrary,4 and may reduce a award to reflect only partial success in the litigation.5 Judge Eldon Fallon of the Eastern District of Louisiana recently held that a non-settling defendant, which was assessed with 15% of the total fault by the jury, was liable for only 15% of total taxable costs.6
28 U.S.C. §1920 identifies the following as items which may what may be taxed as costs:7
(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.
28 U.S.C. § 1920 defines the term “costs” as used in Rule 54 (d), and enumerates expenses that a federal court may tax as costs under the discretionary authority found in Rule 54(d). Section 1920 is phrased permissibly because Rule 54(d) generally grants a federal court discretion to refuse to tax costs in favor of the prevailing party.8 A district court has broad discretion in awarding costs, and its decision to award costs will only be reversed upon a clear showing of an abuse of discretion.9 There is a strong presumption “that the prevailing party is prima facie entitled to costs and it is incumbent on the losing party to overcome that presumption since denial of costs is in the nature of a penalty.”10
Exemplification and duplication costs that are incurred, even “merely for discovery,” are recoverable.11 “Reimbursement for hearing transcripts, deposition transcripts, additional recording transcripts, printing costs, witness fees, and fees for exemplification and copies … were necessarily incurred for use in the case,” and are all “covered by 28 U.S.C. § 1920.”12
Under Secs. 1920(2) and (4), prevailing parties are entitled to the costs of original depositions and copies if “necessarily obtained for use in the trial.” The Fifth Circuit does not require that a deposition be actually introduced into evidence to meet this requirement. If, at the time it was taken, a deposition could reasonably be expected to be used for trial preparation, rather than merely for discovery, it may be included in the costs of the prevailing party. Similarly, a deposition copy obtained for use during trial or for trial preparation, rather than for the mere convenience of counsel, may be included in taxable costs. “Whether a deposition or copy was necessarily obtained for use in the case is a factual determination to be made by the district court. We accord great latitude to this determination.”13
Witness fees may not be assessed in excess of what is permitted by 28 U.S.C. Sec. 1821.14 This, of course, relates directly to the trial testimony of liability and economic expert witnesses, who charge you exorbitant “portal to portal” hourly “appearance” fees. The Fifth Circuit has held that the fees of non-court-appointed expert witnesses are taxable only in the amount specified by Sec. 1821, except that fees in excess of that amount may be taxed when expressly authorized by Congress, or when one of three narrow equitable exceptions to the American Rule applies.”15 This means that beyond mileage and a daily witness fee, which can be taxed to the losing defendant, your client pays for his/her experts’ fees out of the jury award.16
The charges of private process servers are generally not recoverable in the Fifth Circuit absent exceptional circumstances. And, even in exceptional circumstances, the cost recoverable is that which does not exceed what the U.S. Marshal would charge.17 With regard to depositions, incidental costs, such as shipping, expedited transcript fees, binding and tabbing, etc., are not allowed.18 Where a description of charges sought to be taxed (e.g., “Copies for June 2016″) is vague, and provides no information regarding the item copied or its relationship to the case, such costs can be excluded.19 Things like trial medical illustrations are not specifically enumerated in § 1920, so they require pre-trial approval to be recoverable.20 If the trial is significant, it is often pre-tried to a mock jury to determine the hot-button issues. Unfortunately, such costs are akin to consulting or attorney’s fees and are not recoverable under § 1920.21
So, what is the bottom line about federal court taxable costs? First, they will only be a portion of what it costs to successfully prosecute your case through trial (e.g., no taxation of expert report costs, or expert “trial appearance” witness fees). Second, if you have multiple defendants and one settles and the other takes its chances at trial, the district judge will probably impose taxable costs on the trial defendant in a percentage equal to its fault. Make sure your client understands this when you discuss the merits of settlement versus trial, and explain what it will cost to try the case.
1 Roofing v. Assurance Co. of America, 2016 WL 4261768 (E.D. La. 8/12/16) (Milazzo, J.); Seal v. Knorpp, 957 F.2d 1230 (5th Cir. 1992) (applying 28 U.S.C. §§ 1821 and 1920 in a diversity case).
2 Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373, 384 (5th Cir.2012) (quoting Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir.1985).
3 Sigur v. Emerson Process Mgmt., 2008 WL 1908590 (M.D. La. 2/21/2008); Schwarz v. Folloder, 767 F.2d 126 (5th Cir. 1985); Holmes v. Cessna Aircraft Co., 11 F.3d 63 (5th Cir. 1994).
4 Gagnon v. United Technisource, Inc., 607 F.3d 1036 (5th Cir. 2010) quoting Cook Children’s Med. Ctr. v. The New England PPO Plan of Gen. Consolidation Mgmt., Inc., 491 F.3d 266, 274 (5th Cir.2007).
5 Barber v. T.D. Williamson, Inc., 234 F.3d 1223 (10th Cir. 2001); Pierce v. County of Orange, 905 F.Supp.2d 1017 (C.D. cal. 2012).
6 Steve Granger v. Bisso Marine, LLC, et al., No. 15-477 (E.D. La.) (Order and Reasons 11/14/2016).
7 In United States ex rel. Long v. GSDMIdea City, L.L.C., 807 F.3d 125, 129-133 (5th Cir. 2015), the Fifth Circuit discussed most of the items that may be taxed as costs.
8 Champion International Corporation v. International Woodworkers of America, 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987).
9 Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1049 (5th Cir. 1998); Kinnear-Weed Corp. v. Humble Oil & Ref. Co., 441 F.2d 631 (5th Cir.1971).
10 Walters v. Roadway Express, Inc., 557 F.2d 521, 526 (5th Cir. 1977).
11 Fogleman v. ARAMCO (Arabian Am. Oil Co.), 920 F.2d 278, 285–86 (5th Cir.1991); Rundus v. City of Dallas, 634 F.3d 309, 315–16 (5th Cir.2011)
12 GSDMIdea City, L.L.C., 807 F.3d at 130.
13 Fogleman, 920 F.2d at 285.
14 J.T. Gibbons, Inc. v. Crawford Fitting Co., 790 F.2d 1193 (5th Cir. 1986) (en banc),
15 International Woodworkers of America, AFL-CIO and its Local No. 5-376 v. Champion Intern. Corp., 790 F.2d 1174 (5th Cir. 1986). See also Crawford Fitting Co. V. J.T. Gibbons, Inc., 482 U.S. 437, 439 (1987) (expert fees not taxable as costs beyond statutory per diem fee, mileage, and subsistence allowance).
16 28 U.S. Code § 1821(a)(1) provides that “Except as otherwise provided by law, a witness in attendance at any court of the United States shall be paid the fees and allowances provided by this section.” Subsection (b) provides that “A witness shall be paid an attendance fee of $40 per day for each day’s attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.”
17 Marmillion v. American Int’l Ins. Co., 381 F.App’x 421, 423 (5th Cir. 2010).
18 GSDMIdea City, L.L.C., 807 F.3d at 125.
19 Tyler v. Int’l Brotherhood of Elec. Workers, 2000 WL 977602 (E.D. La. 7/14/2000); Zapata Gulf v. Puerto Rico Mar. Shipping Auth., 133 F.R.D. 481, 484 (E.D. La. 1990) (“essentially undocumented” copy costs not allowed).
20 Studiengesellschaft Kohle gmbH v. Eastman Kodak Co., 713 F.2d 128 (5th Cir. 1983) (disallowing district court’s award of costs for charts, models, and photographs in the absence of pre-trial approval by the district court); Baisden v. I’m Ready Prods., Inc., 793 F.Supp.2d 970, 986 (S.D. Tex. 2011) (not allowing costs for producing demonstrative exhibits).
21 Doby v. Sisters of St. Mary of Oregon Ministries Corp., 2015 WL 4877786 (D. Or. 8/14/2015); Am. Bank of St. Paul v. TD Bank, NA, 2012 WL 1622615 (D. Minn. 5/9/2012) (mock jury fees generally characterized as attorney fees and not reasonably necessary).