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American Modern Home Insurance Co. v. Thomas

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

August 22, 2019

AMERICAN MODERN HOME INSURANCE COMPANY, Plaintiff,
v.
AARON THOMAS, et al., Defendants.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.

         Following a seven-day trial, a jury found that plaintiff American Modern Home Insurance Company's policy exclusions did not bar defendants Aaron and Aimee Thomas's insurance claim for property damage arising from a January 2014 apartment fire and, further, that American Modern vexatiously refused to pay the Thomases' claim. As part of the judgment entered on the jury's verdicts, the Thomases were awarded taxable costs from American Modern. The Thomases have submitted a bill of costs, seeking to recover costs totaling $85, 606.17. American Modern objects to certain claimed costs. After careful consideration, I will tax costs in favor of the Thomases in the amount of $24, 948.89.

         Rule 54(d)(1) of the Federal Rules of Civil Procedure provides in pertinent part that “costs - other than attorneys' fees - should be allowed to the prevailing party” “[u]nless a federal statute, these rules, or a court order provides otherwise[.]” The term “costs” as used in Rule 54(d)(1) is defined in 28 U.S.C. § 1920, [1] which enumerates the expenses that a federal court may tax as costs under the discretionary authority found in Rule 54(d). Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987); see also Taniguchi v. Kan.Pac. Saipan, Ltd., 566 U.S. 560, 573 (2012). Not all expenses of litigation are costs taxable against the losing party, however, and within the statutory framework of costs eligible to be taxed, the Court has the discretion in determining and awarding costs in a given case. Taniguchi, 566 U.S. at 573; Pershern v. Fiatallis N. Am., Inc., 834 F.2d 136, 140 (8th Cir. 1987).

         Here, the Thomases seek to tax the following as costs: $320 for fees for service of subpoenas; $26, 879.86 for deposition and court transcripts; $2, 162.72 for witness fees; $20 for docket fees; and $56, 223.59 for expert witness fees. American Modern makes specific objections to certain of the requested costs. I will address each objection in turn.

         Fees for Service of Subpoenas

         The Thomases request $320 in costs for service of trial subpoenas by a private courier service. Section 1920 does not provide for the taxation of fees of private servers; rather, it provides only for the fees of the “clerk and marshal.” 28 U.S.C. § 1920(1).

         The fees of the marshal are explained in 28 U.S.C. § 1921, which provides for the United States Marshal to “routinely collect, and a court may tax as costs, fees for . . . [s]erving . . . summons, complaints, or any other writ, order or process in any case or proceeding . . . [or] a subpoena or summons for a witness or appraiser.” 28 U.S.C. § 1921 (emphasis added). While the marshal no longer serves summons or subpoenas in most civil cases, § 1920(1) nevertheless limits recoverable service-of-process fees to those of the marshal. See Cofield v. Crumpler, 179 F.R.D. 510, 515-16 (E.D. Va. 1998). And relying on the clear language of § 1920(1) as well as Eighth Circuit precedent, Crues v. KFC Corp., 768 F.2d 230, 234 (8th Cir. 1985), this court has repeatedly held that the fees of private process servers are not taxable as costs under 28 U.S.C. § 1920. See Davis v. Lancaster, No. 4:13CV1638 HEA, 2019 WL 265098, at *5 (E.D. Mo. Jan. 18, 2019); Nationwide Affinity Ins. Co. of Am. v. Deimund, No. 1:16CV298 ACL, 2018 WL 6570881, at *1 (E.D. Mo. Dec. 13, 2018); Bry v. City of Frontenac, Mo, No. 4:14-CV-1501 RLW, 2017 WL 244813, at *2 (E.D. Mo. Jan. 19, 2017).

         I will therefore disallow the Thomases' requested fees of $320 for private service of subpoenas.

         Deposition and Court Transcripts

         American Modern challenges $1003.45 in requested costs for court transcripts the Thomases obtained during trial, arguing that fees for daily and real-time transcripts are considered to be for the convenience of counsel and not necessary for use in the case. In response, the Thomases aver that they did not order any real-time transcripts and that to the extent they ordered rough drafts of excerpts of the trial, they did so selectively for purposes of arguing motions to the court, impeaching witnesses, and making strategic decisions regarding the presentation of evidence and witness testimony. In view of the several motions in limine with complex and conditioned rulings, the need to address those rulings throughout the bifurcated trial, the fluid and ever-changing nature of the evidence adduced during trial both in substance and in presentation, and the contentiousness of this case in general, I find the Thomases' selective ordering of rough-draft portions of the trial transcript to be necessary for their use in the case for the reasons they cite. I will allow these transcript fees to be taxed as costs.

         American Modern also challenges the Thomases' requested costs for court transcripts of motion hearings held before me on February 28, 2017, and August 1, 2017. I agree with the Thomases that the February 2017 transcript was necessary for use in the case. It was submitted as an exhibit to a motion in the case and, given the pivotal and significant issues addressed at that hearing, was cited on several occasions by counsel and the Court throughout the course of this litigation. Contrary to American Modern's assertion, a transcript does not need to be necessary only for trial to be considered necessary for use in the case. See Smith v. Tenet Healthsystem SL, Inc., 436 F.3d 879, 889 (8th Cir. 2006). I will therefore allow those costs to be taxed. As to the August 2017 transcript, the Thomases appear to concede to the reduction of the expedited portion of the fee, but they present no explanation or argument as to why that transcript was necessary for use in the case. I will therefore disallow the August 2017 court transcript fee of $242.50 in its entirety.

         I will also disallow the $90 in ASCII fees for the depositions of Professor Jeffrey Thomas and Joseph Trawecki, as well as fees totaling $831.25 for the synchronization of deposition videos taken of Pamela Alexander, Lewis Crist, Adam Wolfe, Bill Heeb, and David McGuire. These fees were incurred for the convenience of counsel and not necessarily obtained for use in the case. See Alternative Med. & Pharmacy, Inc. v. Express Scripts, Inc., No. 4:14 CV 1469 CDP, 2016 WL 3443574, at *2-3 (E.D. Mo. June 23, 2016).

         American Modern also asks that I disallow fees in toto for the video depositions of Crist, Wolfe, Heeb, McGuire, John Nordyke, and Dan Bruno, arguing that both a printed transcript and video for these depositions were not necessary for use in the case.[1] In Stanley v. Cottrell, Inc., 784 F.3d 454 (8th Cir. 2015), the Eighth Circuit 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.” Id. at 467. The Thomases aver that Heeb and McGuire were both outside the subpoena power of the court and that the video deposition of each was necessary for presentation to the jury in the event they did not voluntarily appear at trial. Given the potential unavailability of these critical witnesses, I will allow the video costs of their depositions. See Cowden v. BNSF Ry. Co., 991 F.Supp.2d 1084, 1092 (E.D. Mo. 2014). I will also allow the costs for Nordyke's video deposition as the Thomases played it at trial as affirmative evidence. However, although the Thomases claim that clips from the other challenged video depositions were used at trial for impeachment purposes, only the printed transcripts were used to impeach Bruno, Wolfe, and Crist. A very short clip of Wolfe's video deposition was played, but that was to refresh his recollection. The printed deposition could have been used for that purpose. The video depositions of Bruno, Wolfe, and Crist were not necessary for use in the case. I will therefore disallow $2817.50, which represents the remaining video costs of their depositions.[2]

         Finally, I will allow the costs for obtaining the expedited transcripts of Bruno's August 25, 2017, deposition and Professor Thomas's December 29, 2017, deposition. As stated by the Thomases, Bruno walked out of his August 2017 deposition, prompting them to seek a continuance of relevant deadlines (ECF 135), as well as a court order for Bruno to complete the deposition (ECF 140). The latter motion was fully briefed, was submitted with excerpts of Bruno's transcribed deposition, and needed to be ruled quickly given the already-delayed deadlines in the case. Given the temporal proximity of Bruno's August 2017 deposition to the relevant deadlines, and that Bruno's conduct was what caused the need for the expedited transcript, taxing the costs for expedited production of the transcript is warranted here. See Jo Ann Howard & Assocs., P.C. v. Cassity, 146 F.Supp.3d 1071, 1081 (E.D. Mo. 2015). It was also necessary for the Thomases to obtain an expedited transcript of Professor Thomas' deposition. Professor Thomas, the Thomases' insurance-industry expert, was deposed on December 29, 2017. Given the Court-ordered deadlines in place (see ECF 151), it was necessary for the Thomases to obtain the ...


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