United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
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.
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,  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.
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.
for Service of Subpoenas
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).
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).
therefore disallow the Thomases' requested fees of $320
for private service of subpoenas.
and Court Transcripts
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.
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.
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).
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. 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.
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 ...