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Bry v. City of Frontenac

United States District Court, E.D. Missouri, Eastern Division

January 19, 2017

ROBERT M. BRY, Plaintiff,
v.
CITY OF FRONTENAC, MISSOURI, et al., Defendants.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiffs Bill of Costs. (ECF No. 175). This matter is fully briefed and ready for disposition.

         BACKGROUND

         On 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).

         STANDARD OF REVIEW

         Costs, 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).[1] "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)).

         DISCUSSION

         A. Timing of Filing of Bill of Costs

         Local 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. 8.03(A).

         Plaintiff 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 costs")(emphasis added).

         The 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.

         B. Costs of Service

         Plaintiff 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).

         The 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 ...


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