United States District Court, E.D. Missouri, Eastern Division
ROBERT M. BRY, Plaintiff,
CITY OF FRONTENAC, MISSOURI, et al., Defendants.
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs Bill of Costs. (ECF
No. 175). This matter is fully briefed and ready for
December 18, 2015, this Court granted summary judgment in
favor of Defendants on all of Plaintiff s claims. (ECF No.
172-174). On January 15, 2016, Defendants filed their Bill of
Costs, seeking $8, 430.01 in costs for litigating this
matter. (ECF No. 175).
other than attorneys' fees, "should be allowed to
the prevailing party." Fed.R.Civ.P. 54(d); see
also 28 U.S.C. § 1920 (enumerating costs that are
recoverable). "Federal courts are bound by the
limitations set out in section 1920." 168th &
Dodge, LP v. Rave Reviews Cinemas, LLC, 501 F.3d 945,
957 (8th Cir. 2007) (citations omitted). Although there is a
presumption that the prevailing party is entitled to its
costs, the district court has "substantial
discretion" in awarding costs. Marmo v. Tyson Fresh
Meats, 457 F.3d 748, 762 (8th Cir. 2006) (citing
Computrol, Inc. v. Newtrend, L.P., 203 F.3d 1064,
1072 (8th Cir. 2000)); Bathke v. Casey's Gen.
Stores, 64 F.3d 340, 347 (8th Cir. 1995). "The
losing party bears the burden of overcoming the presumption
that the prevailing party is entitled to costs, meaning that
the losing party must 'suggest a rationale under which
the district court's actions constitute an abuse of
discretion.'" 168th & Dodge, LP, 501
F.3d at 958 (quoting Janis v. Biesheuvel, 428 F.3d
795, 801 (8th Cir. 2005)).
Timing of Filing of Bill of Costs
Rule 8.03 provides that a "party seeking an award of
costs shall file a verified bill of costs, in the form
prescribed by the Clerk, no later than twenty-one (21) days
after the entry of final judgment pursuant to Fed.R.Civ.P.
58. Failure to file a bill of costs within the time provided
may constitute a waiver of taxable costs." E.D.Mo. L.R.
argues that Defendants' bill of costs was untimely.
Plaintiff notes that Defendants filed their bill of costs
twenty-eight (28) days after the final judgment was entered
and, therefore, Defendants have waived their right to recover
costs. (ECF No. 180 at 1-2 (citing ACI/Boland, Inc. v.
U.S. Specialty Ins. Co., No. 4:07CV0378 TCM, 2009 WL
578307, at *1 (E.D. Mo. Mar. 5, 2009) (pending bill of costs
was filed ten days too late)). Plaintiff claims he was
prejudiced by the untimely filing of the bill of costs
because he "authorized his attorneys to draft and file a
notice of appeal on his behalf. Frontenac's untimely
attempt to collect its costs creates potential unexpected
costs that Mr. Bry faces as he and his attorneys prepare his
appeal." (ECF No. 180 at 2). In response, Defendants
argue that Local Rule 8.03 affords the Court discretion to
accept a late-filed bill of costs. See E.D.Mo. L.R.
8.03(A) ("[f]ailure to file a bill of costs within the
time provided may constitute a waiver of taxable
Court exercises its discretion to accept Defendants'
untimely Bill of Costs. The Court holds that Plaintiff has
not demonstrated any prejudice by Defendants' one-week
delay in filing the Bill of Costs. See Stewart v. City of
St. Louis, No. 404CV00885 RWS, 2007 WL 2994444, at * 1
(E.D. Mo. Oct. 10, 2007). The Court holds that Defendants did
not waive their taxable costs.
Costs of Service
argues that the $189.96 charge for service of process for the
depositions of Robin Wolfsberger and Sheila Hoffman is not
proper. (ECF No. 180 at 3 (citing Lee ex rel. Lee v.
Borders, No. 4:09CV1977 TIA, 2013 WL 1316985, at *4
(E.D. Mo. Mar. 29, 2013) ("the costs paid to process
severs other are not taxable as costs"); ACI/Boland,
Inc. v. U.S. Specialty Ins. Co., No. 4:07CV0378 TCM,
2009 WL 578307, at *1 (E.D. Mo. Mar. 5, 2009) (the costs for
service of process for a special process server is not
provided for in § 1920)). In response, Defendants argue
that the cost of a special process server was properly
incurred based upon their difficulty in serving Ms.
Wolfsberger and Ms. Hoffman's failure to appear for her
deposition. (ECF No. 181 at 7-8).
Court holds that Defendants are not entitled to the cost of
service of process. Eighth Circuit precedent is clear that
the cost for service of process is not recoverable. See
Crues v. KFC Corp.,768 F.2d 230, 234 (8th Cir. 1985)
(Defendant cannot "recover $250 for use of a special
process server, because 28 U.S.C. § 1920 (1982) contains
no provision for such expenses"); Lee ex rel
Lee, 2013 WL ...