United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
a three-day trial, a jury found that defendant Southwest
Foodservice Excellence, LLC, wrongfully discharged plaintiff
Linda King from her employment in violation of Missouri
public policy. The jury awarded King $231, 500 in damages,
and judgment on the verdict was entered April 25, 2019.
King's taxable costs were included in the judgment. King
has now submitted a bill of costs in the amount of $2151.83,
to which defendant objects. King also moves for entry of an
amended judgment to include costs and post-judgment interest.
Defendant objects to King's proposed rate of interest.
After careful consideration, I will tax costs in favor of
King in the amount of $1946.53. I
will deny King's request to amend the judgment. Costs
were already included in the judgment, and post-judgment
interest at the federal rate is allowed as a matter of law on
any money judgment recovered in this court. An amended
judgment is therefore not necessary.
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.
King seeks to tax the following as costs: $110 in fees for
service of subpoenas; $1765.28 for deposition transcripts;
$137.40 for witness fees; and $139.15 for exemplification and
copy fees. Defendant makes specific objections to certain of
the requested costs. I will address each objection in turn.
for Service of Subpoenas
requests $110 in costs for service of trial subpoenas by a
private process server. 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 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 King's requested fees of $110 for
private service of subpoenas.
seeks to recover attendance fees and mileage costs for trial
witnesses Sonya Wayne and Keisha Murphy and for proffered
witness Octavian Sullivan. Defendant challenges King's
requested fees for Sullivan, arguing that King should be
permitted to recover costs for only those witnesses who
testified at trial. In the circumstances of this case, I
trial began, I granted that portion of defendant's motion
in limine seeking to exclude Sullivan's testimony for the
reason that King failed to disclose him as a witness under
Fed.R.Civ.P. 26(a). Defendant argued that if King would have
properly disclosed Sullivan, it would have sought to depose
him. King presented Sullivan on the second day of trial,
however, and proffered his testimony outside the hearing of
the jury. This proffered testimony addressed Sullivan's
experience with King during the 2013-2014 school year,
including an incident involving another worker that led to
discipline. Because of my earlier ruling, I did not permit
Sullivan to testify at trial.
may not ordinarily be taxed for someone who comes to the
courthouse but does not testify. Stanley v. Cottrell,
Inc., 784 F.3d 454, 467 (8th Cir. 2015). When a court
order or some extrinsic circumstance renders the testimony
unnecessary, however, witness fees are allowed. Id.
Here, I barred Sullivan from testifying at trial on account
of King's failure to identify him as a witness in her
Rule 26 disclosures, and I made this ruling clear on the
first day of trial before jury selection. I did not hold my
order in abeyance pending an offer of proof. Sullivan's
appearance on the second day of trial was unnecessary; not
because of a court order or ...