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King v. Southwest Foodservice Excellence, LLC

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

November 18, 2019

LINDA KING, Plaintiff,
v.
SOUTHWEST FOODSERVICE EXCELLENCE, LLC, Defendant.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

         Following 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.

         Costs

         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, 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.

         Fees for Service of Subpoenas

         King 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).

         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 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 King's requested fees of $110 for private service of subpoenas.

         Fees for Witnesses

         King 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 agree.

         Before 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.

         Fees 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 ...


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