United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE.
class action is before the Court on Plaintiffs’ and
Defendants’ motions for bills of costs. Following cross
motions for summary judgment, and a bench trial on one claim
on behalf of two of the named Plaintiffs (Count IV), the
Court entered judgment in favor of Plaintiffs and against
Defendant Panera, LLC, on Count I (classwide breach of
contract), in the amount of $4, 774, 022; in favor of
Defendant Panera, LLC, on Counts II (classwide fraud), III
(individual fraud), and IV (individual unjust enrichment);
and in favor of Defendant Panera Bread Company on all Counts.
Both sides now assert that they are the prevailing party, and
both object to an award of costs to the opposing party. The
parties also assert specific objections to certain categories
of costs sought by the opposing party. For the reasons set
forth below, the Court concludes that Plaintiffs are the
prevailing parties and entitled to $5, 578.64 of the $7,
372.39 they request in costs.
Rule of Civil Procedure 54(d)(1) provides that
“[u]nless a federal statute, these rules, or a court
order provides otherwise, costs-other than attorney’s
fees- should be allowed to the prevailing party.” Under
Rule 54(d)(1), a “prevailing party is presumptively
entitled to recover all of its costs.” 168th &
Dodge, LP v. Rave Reviews Cinemas, LLC, 501 F.3d 945,
958 (8th Cir. 2007) (internal quotation omitted).
“[S]uch costs must be set out in 28 U.S.C. § 1920
or some other statutory authorization.” Smith v.
Tenet Healthsystem SL, Inc., 436 F.3d 879, 889 (8th Cir.
2006) (citing Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 438 (1987)). The party objecting to
an award of costs “bears the burden of overcoming the
presumption that [the prevailing party] is entitled to
recover all costs allowed by § 1920.” Stanley
v. Cottrell, Inc., 784 F.3d 454, 464 (8th Cir. 2015).
counts as prevailing for purposes of an award of costs is a
question of law.” Leonard v. Sw. Bell Corp.
Disability Income Plan, 408 F.3d 528, 533 (8th Cir.
2005). “Where each of the parties has prevailed on one
or more of its claims, defense[s], or counterclaims, the
district court has broad discretion in taxing costs.”
Johnson v. Nordstrom-Larpenteur Agency, Inc., 623
F.2d 1279, 1282 (8th Cir. 1980).
a prevailing party is one “in whose favor a judgment is
rendered.” Firefighter’s Inst. for Racial
Equal. ex rel. Anderson v. City of St. Louis, 220 F.3d
898, 905 (8th Cir. 2000) (citation omitted). But “[a]
party who is only partially successful also can be deemed a
prevailing party. Consequently, a claimant who has obtained
some relief usually will be regarded as the prevailing party
even though the party has not sustained all his
claims.” 10 Charles Alan Wright et al., Federal
Practice and Procedure § 2667 (3d ed.); see also
Hillside Enterprises v. Carlisle Corp., 69 F.3d 1410,
1416 (8th Cir. 1995) (holding that although both parties
prevailed on some claims, “[t]he district court
properly exercised its broad discretion in awarding costs
only to [the plaintiff] . . . [b]ecause [the plaintiff] won a
larger judgment [and could] logically be considered the
prevailing party under the rule”); Tanner v. City
of Sullivan, No. 4:11-CV-1361 NAB, 2013 WL 3287168, at
*2 (E.D. Mo. June 28, 2013) (holding that the plaintiffs were
the prevailing party because “[w]hile both sides won a
claim, Plaintiffs changed their relationships with Defendants
by being awarded $2.85 million dollars”);
Litecubes, LLC v. N. Lights Prod., Inc., No.
4:04-CV485 ERW, 2006 WL 5700252 at *12 (E.D. Mo. Aug. 25,
2006) (“While both parties each ‘won’ two
claims, Plaintiffs changed their relationship with Defendant
by being awarded $150, 000.”).
the Court finds that, although they did not succeed on all of
their claims, Plaintiffs’ substantial success on their
breach of contract claim makes them the prevailing parties in
this case against Defendant Panera, LLC. Therefore, the
Court will deny Defendants’ bill of costs.
to Particular Costs
Plaintiffs’ bill of costs, Defendants raise two
specific objections. First, Defendants argue that
Plaintiffs’ requests for costs for the three
depositions it took of Defendants’ corporate
representative, pursuant to Federal Rule of Civil Procedure
30(b)(6), should be denied. Defendants argue that Plaintiffs
did not need to take all three depositions and should be
awarded costs only for the first deposition. Second,
Defendants argue that Plaintiffs should not be permitted to
recover costs for both printed and electronically recorded
transcripts of the same deposition.
prevailing party may recover costs incurred for depositions
if they were “necessarily obtained for use in the
case.” 28 U.S.C. § 1920(2). In general, this means
that “costs associated with depositions are taxable if
the depositions were obtained for trial preparation and not
merely for investigative purposes.” Morgan v.
Orthopaedic Assocs. of Se. Mo. P.C., No. 1:12-CV-136
CEJ, 2014 WL 3687120, at *1 (E.D. Mo. July 24, 2014). Here,
the Court concludes that the three Rule 30(b)(6) depositions
taken by Plaintiffs were obtained for trial preparation and
not merely for investigative purposes.Plaintiffs cited
all three depositions in their motion for summary judgment,
and the Court specifically permitted the third deposition
following a discovery dispute by the parties. (Doc. No. 95.)
Therefore, the Court will overrule Defendants’
objection on this ground.
the Court agrees with Defendants that, in this case,
Plaintiffs should not be permitted to recover costs for both
printed and electronically recorded depositions. The Eighth
Circuit permits recovery of costs for both printed
transcripts and video recordings of the same deposition only
if both were “necessarily obtained for use in the
case.” Stanley, 784 F.3d at 465 (citation
omitted). Both types may be necessary, for example, “in
a large and complex patent case” where the parties wish
to use electronic recordings in trial “while also
retaining written transcripts for purposes of filing copies
with the court, ” or in cases where attorneys are
“called upon to edit objectionable portions of
electronically recorded testimony, or to supply an opposing
party with a transcript to obtain a video or audio recorded
deposition.” Id. at 466-67 (citations
Court is not convinced that this is such a case. The Court
also notes that Plaintiffs objected to Defendants’
request for costs for both types of transcripts. Therefore,
the Court will sustain Defendants’ objection on this
ground. Plaintiffs state that should the Court “find
the costs of video and stenographic recordings are not both
available in this case, Plaintiffs respectfully ask for
deposition costs in the amount of $4, 878.64, representing
the amount paid for the stenographic transcripts and copies
of deposition exhibits, and the court reporters’
appearance fees.” (Doc. No. 268-1.) Defendants have not
objected to this calculation, and upon examination of the
invoices submitted by Plaintiffs, the Court finds that these
costs are recoverable.
have not specifically objected to any other category of
costs, and upon review of Plaintiffs’ bill of costs,
the Court finds that Plaintiffs are entitled to all costs