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Hogan Logistics, Inc. v. Davis Transfer Co. Inc.

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

July 19, 2018

HOGAN LOGISTICS, INC., Plaintiff,
v.
DAVIS TRANSFER COMPANY, INC., Defendant.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE

         This closed diversity matter is before the Court on plaintiff Hogan Logistics, Inc.'s (“Hogan”) Bill of Costs and Motion for Attorney's Fees, and defendant Davis Transfer Company, Inc.'s (“Davis”) objections thereto. Both matters are fully briefed and ready for decision. For the following reasons, the Court will order costs taxed in favor of plaintiff and grant the motion for attorney's fees as set forth below.

         I. Background

         This was an action for breach of contract. Plaintiff Hogan originally filed suit against Davis in state court, asserting a claim for breach of contract arising from a 2013 Broker-Carrier Agreement (the “Agreement”) entered into between the parties. Davis removed the case to this Court based on diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332(a). The Court denied Davis's motion for judgment on the pleadings, finding in pertinent part that the disputed term “traffic” as contained in the Agreement's Traffic Solicitation Clause was ambiguous as a matter of law, as each party offered plausible interpretations of its meaning. Mem. and Order of Apr. 27, 2017 (Doc. 32 at 6) (J. Jackson). Hogan filed an Amended Complaint that added claims for breach of the implied duty of good faith and fair dealing and tortious interference (Doc. 39), but later dismissed those claims leaving only the breach of contract claim in Count I (Doc. 75).

         The Court denied defendant Davis's motion for summary judgment, concluding that the disputed Traffic Solicitation Clause was ambiguous, and therefore under Missouri law the parties' intent as to the meaning of the contract was a genuine issue of fact to be determined at trial. Mem. and Order of January 9, 2018 (Doc. 89 at 12-14).

         Hogan's breach of contract claim was tried before a jury on February 26, 2018 through February 28, 2018, when the jury returned its verdict in favor of plaintiff Hogan in the amount of $48, 846.67 (Doc. 140). The Court entered Judgment in favor of Hogan accordingly and awarded Hogan its costs (Doc. 141).

         II. Plaintiff Hogan's Bill of Costs

         Hogan filed a Bill of Costs seeking the recovery of its taxable costs as a prevailing party. Hogan seeks total costs of $6, 021.67, as follows:

• Fees of the clerk

$ 104.40

• Fees for service of summons and subpoena

435.00

•Fees for transcripts

5, 242.27

• Fees for witnesses

40.00

• Other costs (meeting room fee)

200.00

TOTAL

$ 6, 021.67

         A. Legal Standard

         Hogan's request for its costs expended is governed by Rule 54(d) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1920. The Court must carefully scrutinize the claimed costs and the support offered for them. Farmer v. Arabian American Oil Co., 379 U.S. 227, 232-33, 235 (1964); Alexander v. National Farmers Org., 696 F.2d 1210, 1212 (8th Cir. 1982). “The party seeking to recover costs must fully establish the amount of compensable costs and expenses to which it is entitled.” ABT Sys., LLC v. Emerson Elec. Co., 2016 WL 5470198, at * (E.D. Mo. Sept. 29, 2016) (cited case omitted). The taxation of costs under Rule 54(d) is permissive, but in the Eighth Circuit there is a strong presumption the prevailing party is entitled to an award of costs. Thompson v. Wal Mart Stores, Inc., 472 F.3d 515, 517 (8th Cir. 2006). “As the losing party, [Davis] bears the burden of overcoming the presumption that [Hogan] is entitled to recover all costs allowed by § 1920.” Stanley v. Cottrell, Inc., 784 F.3d 454, 464 (8th Cir. 2015).

         Allowable costs in most cases are limited to the categories set forth in 28 U.S.C. § 1920, and expenses not on the statutory list must be borne by the party incurring them. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987); Brisco-Wade v. Carnahan, 297 F.3d 781, 782 (8th Cir. 2002). Taxable costs under § 1920 include: (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 28 U.S.C. § 1923; and (6) compensation of court appointed experts and interpreters under 28 U.S.C. § 1828. The Court will address each category of Hogan's claimed costs.

         B. Discussion

         1. Fees of the Clerk

         Under 28 U.S.C. § 1920(1), Hogan seeks to recover Clerk's fees of $104.40 for the filing fee it paid when it filed this action in state court. The Eighth Circuit Court of Appeals has held, however, that “Section 1920 does not authorize the taxing of state court filing fees . . . in removal actions[.]” Pershern v. Fiatallis N. Am., Inc., 834 F.2d 136, 140 (8th Cir. 1987). The Court is of course bound by this precedent and therefore will not tax this item of cost, but will address below whether Hogan can recover the state court filing fee pursuant to the attorneys' fees provision in the parties' Agreement.

         2. Fees for Service of Summons and Subpoena

         Hogan seeks reimbursement of private process server fees for issuance of summons and subpoenas in the amount of $435.00 under 28 U.S.C. § 1920(1). The Eighth Circuit has held that § 1920 contains no provision for use of a private process server and only allows taxation of service fees by the United States Marshal. See Crues v. KFC Corp., 768 F.2d 230, 234 (8th Cir. 1985). The Court is bound to follow this precedent. See Marez v. Saint-Gobain Containers, Inc., 2011 WL 1930706, at *15 (E.D. Mo. May 18, 2011); see also Bunda v. Potter, 2006 WL 2665134, at **3-6 (N.D. Iowa Jan. 31, 2006) (discussing Crues in depth; concluding that “while other courts have permitted the recovery of special process fees, this court is compelled to follow Eighth Circuit precedent regardless of the equities at play in the facts of this case.”). The Court will not tax the private process server fees as a cost but will address below whether Hogan can recover these fees pursuant to the attorneys' fees provision in the parties' Agreement.

         3. Fees for Transcripts Necessarily Obtained for Use in the Case

         Hogan seeks reimbursement of $5, 242.27 for court reporter/transcript fees for seven depositions. Davis objects to (a) a $369.60 charge invoiced August 15, 2017, for an expedited rough ASCII copy of Benjamin Strickler's deposition; (b) charges of $275.00 and $150.00 invoiced August 28, 2017, for video of Katherlin Wall's deposition; (c) a $232.72 charge invoiced October 17, 2017, for expedited delivery of Henry Seaton's deposition transcript; and (d) charges of $225.00 and $62.50 invoiced November 6, 2017 for the video of Rick Fenner's deposition. Davis does not offer any argument or authority in support of its cursory objections.

         (a) Expedited Rough ASCII Copy

         Hogan states that Davis first ordered an expedited copy of Benjamin Strickler's deposition which caused Hogan to order it as well, and asserts that under these circumstances the cost is fairly taxable to Davis, citing Buehrle v. City of O'Fallon, 2012 WL 579473, at *3 (E.D. Mo. Feb. 22, 2012).

         This Court has allowed the cost of expedited transcripts in some cases and denied it in others, based on evidence offered as to why expedited transcripts were reasonable and necessary under the circumstances of each case. See, e.g., American Auto Ins. Co. v. Omega Flex, Inc., 2014 WL 980398, at *4-5 (E.D. Mo. Mar. 12, 2014) (allowing cost of expedited transcript of hearing on summary judgment and Daubert motions as reasonable and necessary because of short period of time between the ruling on the motions and the deadline for filing motions in limine); but see ABT Sys., 2016 WL 5470198, at *3 (denying expedited transcripts where prevailing party failed to show they were necessary and failed to demonstrate it could not have scheduled the depositions in question earlier to avoid having so many shortly before dispositive motion deadline); and U.S. Ring Binder, L.P. v. Staples Office Superstore, LLC, 2010 WL 2010443, at *2 (E.D. Mo. May 19, 2010) (disallowing cost of two-day rush expedited transcript where prevailing party failed to adequately explain why witness's failure to answer questions during his deposition necessitated the rush transcript to meet deadline for motions to compel nine days later). In the Buehrle case, cited by Hogan, the Court allowed a prevailing defendant to recover the costs of expedited deposition transcripts where only the plaintiff had requested the expedited transcripts, and they were paid for by the defendant. 2012 WL 579473, at *3.

         Here, Hogan provides no information from which the Court can determine whether the expedited Strickler transcript was reasonable and necessary in the circumstances of this case. The mere fact that defendant Davis ordered an expedited transcript does not automatically make it reasonable and necessary for Hogan to do so. The Court has no information as to why either party found it appropriate to order an expedited transcript. Unlike the Buehrle case, Hogan did not pay for an expedited transcript only ordered by Davis, so Buehrle does not support a finding of reasonableness here. The Court will disallow the $369.60 cost of the expedited rough ASCII transcript of Mr. Strickler's deposition but will address below whether Hogan can recover the transcript fee pursuant to the attorneys' fees provision in the parties' Agreement.[1]

(b) Video Deposition Costs

         Defendant Davis objects to charges of $275.00 and $150.00 for video recording of Hogan's witness Katherlin Wall's deposition in Savannah, Georgia, and charges of $225.00 and $62.50 for video recording of Hogan's witness Rick Fenner's deposition in Houston, Texas. Wall and Fenner are Hogan's current and former logistics coordinators. The video deposition charges were in addition to charges for printed transcripts. Hogan played the two video depositions at trial, and these witnesses' testimony helped it obtain a favorable verdict. Neither video had text running across the bottom of the screen, and neither was synched to a transcript. Hogan asserts it was necessary for it to also obtain printed transcripts of the depositions in order to comply with the Case Management Order's requirements concerning deposition designations, as it had to cite page and line numbers.

         The Eighth Circuit has held that “§ 1920(2) permits taxation of costs for both printed and electronically recorded transcripts of the same deposition as long as each transcript is necessarily obtained for use in a case.” Stanley, 784 F.3d at 467. The Eighth Circuit observed that there are many circumstances where both printed and electronically recorded transcripts of the same deposition can satisfy the statute's “necessarily obtained for use in the case” requirement. Id. at 466. For example, both printed and video depositions may be necessarily obtained for use in the case where “parties may capture depositions electronically in a large and complex patent case for use in trial while also retaining written transcripts for purposes of filing copies with the court, ” and where “[a]ttorneys may . . . be 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. (citing cases).

         The Court finds under the circumstances of this case that Hogan has established both printed and electronic transcripts of the same depositions were “necessarily obtained for use in the case” for the reasons it asserts, thus satisfying the statute's requirement. These costs will be taxed.

         (c) Expedited ...


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