United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendant's motion for
costs and motion for leave to correct and submit its Verified
Bill of Costs (#60, #66).
Court granted summary judgment to defendant General Motors.
Defendant moved for an order requiring plaintiff to pay
defendant's costs totaling $8, 535.55. In response,
plaintiff objected to $2, 867.95 of the costs and also noted
that defendant had not verified the bill of costs with a
signature. Thus, defendant filed a motion for leave to file
the corrected bill of costs, explaining that counsel had
inadvertently typed his name instead of adding an electronic
signature. Plaintiff objected to the motion and requested
that the motion for costs be denied outright.
Rule of Civil Procedure 54(d)(1) provides that
“costs.. .shall be allowed as a matter
of course to the prevailing party unless the court otherwise
directs.” Under that rule, costs recoverable include
(1) fees of the clerk, (2) fees for transcripts, (3) fees for
printing and witnesses, (4) fees for copies of papers
necessarily obtained for use in the case, (5) docket fees,
and (6) compensation of court-appointed experts and
interpreters. 28 U.S.C. § 1920. Rule 54(d) creates a
presumption favoring the award of costs to the prevailing
party. Computrol, Inc. v. Newtrend, 203 F.3d 1064,
1072 (8th Cir. 2000). The court has substantial discretion in
awarding costs. Id.
counsel promptly corrected the bill of costs. The Court will
accept defendant's corrected, signed bill of costs.
See Fed. R. Civ. P. 11(a).
over $8, 000 in costs requested by defendant, plaintiff
objects to the following:
288.75 charge for videotaping deposition of
plaintiff where there was also a charge of $1,
426.40 for the transcript of same deposition. Courts in this
circuit have allowed recovery of costs for both video and
written transcripts where video was used at trial.
E.g., Johnson v. Bergh, 4:06CV605 CDP, 2009
WL 36421, at *2 (E.D. Mo. Jan. 6, 2009); Moore v.
DaimlerChersler Corp., 4:06CV757 CDP, 2007 WL 1445591,
at *1 (E.D. Mo. May 11, 2007); Monsanto Co. v. Bayer
Cropscience, N.V., 4:00CV01915-ERW, 2007 WL 1098504, at
*3 (E.D. Mo. Apr. 12, 2007). Here, defendant explains that
the credibility of the witness would have been a critical
issue at trial, thus requiring a videotaped deposition for
use at trial. This cost will be taxed against plaintiff.
for additional electronic copies of two depositions
for which defendant submitted two separate bills for the same
electronic transcripts totaling $983.50. Defendant withdraws
the duplicate request.
for electronic copies of transcripts of depositions
of Kim Schneider and Nicholas Gruber for which defendant also
ordered paper copies. Defendant does not explain that it
would have been improper for it to have made its own
electronic versions of these transcripts. As it appears these
were purchased for convenience, the Court will not allow
for “Litigation Package” beyond the
costs of copies of transcript for deposition of Millie
Donnelly. Defendant does not explain what this charge
included. The Court will not allow this cost.
for exhibit-related costs for depositions and
$76.50 for shipping and postage-related
costs for depositions. The exhibits and shipping
appear to be necessary to litigation of the case, and the
Court will allow the costs.
for expert witness fee for the deposition of Dr.
Scott Gilbert. Dr. Gilbert was plaintiff's economic
damages expert. Plaintiff points out that § 1920 allows
for recovery of costs, but not fees, related to
court-appointed experts. Defendant argues only that the
deposition was necessary to the litigation without explaining
how this cost was recoverable in light of the
“court-appointed” expert restriction. In support,
defendant cites an Eighth Circuit case affirming the award of
an expert's fees where the expert testimony was
“crucial to the issues decided.” Nemmers v.
City of Dubuque, 764 F.2d 502, 506 (8th Cir. 1985)
(internal quotation omitted). As other courts have
recognized, however, it appears that the Supreme Court
implicitly overruled Nemmers in Crawford Fitting
Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 440-45 (1987),
when it held a prevailing party's recovery of
expert-witness-related fees cannot exceed the statutory
limit. See, e.g., McLelland v. Ridge Tool Co., 350
F.Supp.3d 773, 778 n.2 (W.D. Ark. 2018); Amana Soc, Inc.
v. Excel Eng'g Inc., 10-CV-168-LRR, 2013 WL 427394,
at *9 (N.D. Iowa Feb. 4, 2013). See also Johnson,
2009 WL 36421, at *2 (noting that expert witness testimony
costs did not properly include fee paid to expert). The Court
will not allow this cost.
for mileage for deposition of Shelley Hart, where
her mileage appears to exceed 100 miles and her supporting
documentation is inadequate. Shelley Hart had retired from GM
by the time of the deposition and she was living in Alabama.
She drove 90 miles round-trip two times (for a total of 180
miles), and defendant reimbursed her for her mileage. It is
unclear how else defendant should have substantiated this
mileage. Defendant agrees that plaintiff should be
responsible only for the mileage to and from the deposition
and proposes reducing the request to $49.05. Because
plaintiff does not appear to object to the cost generally,
the Court will reduce the cost as proposed by defendant.
IT IS HEREBY ORDERED that defendant's
motion to file ...