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RG Steel Sparrows Point, LLC v. Kinder Morgan Bulk Terminals, Inc.

United States District Court, D. Maryland

April 7, 2016

RG STEEL SPARROWS POINT, LLC f/k/a SEVERSTAL SPARROWS POINT, LLC Plaintiff
v.
KINDER MORGAN BULK TERMINALS, INC. d/b/a KINDER MORGAN CHESAPEAKE BULK STEVEDORES Defendant

MEMORANDUM

William M. Nickerson Senior United States District Judge

Before the Court is Defendant’s Motion to Review the Clerk’s Order Taxing Costs. ECF No. 211. That motion is ripe. Upon a review of the pleadings and the applicable case law, the Court determines that no hearing is necessary. Local Rule 105.6. For the reasons set forth below, Defendant’s motion is granted in part and denied in part, and costs will be taxed in favor of Plaintiff and against Defendant in the amount of $47, 465.36 and included in the judgment.

I. FACUTAL AND PROCEDURAL BACKGROUND

This case arose in the aftermath of the catastrophic collapse of a bridge crane owned by Plaintiff RG Steel Sparrows Point, LLC and used by Defendant Kinder Morgan Bulk Terminals, Inc. to unload coke used to fuel a steel mill located near Baltimore, Maryland. On March 6, 2014, judgment was entered in this action in favor of Plaintiff and against Defendant in the amount of $13, 789, 218.00. ECF No. 171. On March 13, 2014, Defendant filed a Notice of Appeal to the United States Court of Appeals for the Fourth Circuit. ECF No. 172. On March 20, 2014, Plaintiff filed a Bill of Costs, ECF No. 176, which was opposed by Defendant. ECF No. 179. On July 3, 2014, Plaintiff’s Bill of Costs was denied without prejudice pending appeal. ECF No. 187. On April 28, 2015, the Fourth Circuit affirmed the judgment of this Court, ECF No. 192, which became effective by mandate issued May 20, 2015. ECF No. 196.

On May 29, 2015, Plaintiff, the prevailing party, submitted an amended Bill of Costs requesting that the Clerk tax the following costs against Defendant:

Fees of the Clerk

$350.00

Fees for service of summons and subpoena

$530.00

Fees for printed or electronically recorded transcripts

$43, 336.85

Fees of disbursements for printing

$7, 070.70

Fees for witnesses

$53.00

Fees for exemplification and the costs of making copies

$77, 912.99

Docket fees under 28 U.S.C. § 1923 $349.30

TOTAL

$129, 601.84

ECF No. 201. Defendant did not file an opposition to the amended Bill of Costs. On December 1, 2015, the Clerk issued an Order taxing the entirety of costs in favor of Plaintiff and against Defendant in the amount of $129, 601.84.[1] ECF No. 210.

Defendant does not deny that Plaintiff, as the prevailing party, should be afforded costs. Rather, Defendant argues that Plaintiff’s Bill of Costs does not contain the required supporting documentation and that many of the costs requested and subsequently assessed are not properly taxable pursuant to 28 U.S.C. § 1920. ECF No. 211-1 at 1. Defendant asks the Court to vacate the Clerk’s Order Taxing Costs, deny a number of costs totaling $102, 688.31, and tax no more than $26, 913.53 in costs. ECF No. 213 at 8.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 54(d)(1), “[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney’s fees-should be allowed to the prevailing party.” Taxation of costs in the first instance is generally performed by the Clerk on the prevailing party’s motion.[2] Guidelines 1(A). Under Rule 54(d)(1), a party may move for review of the Clerk’s order taxing costs within seven days of taxation.

A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and marshal;(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;(3) Fees and disbursements for printing and witnesses;(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;(5) Docket fees under section 1923 of this title;(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

28 U.S.C. § 1920. While an award of costs to the prevailing party is usual, the inclusion of various items within that award rests with the sound discretion of the trial court. See Advance Bus. Sys. & Supply Co. v. SCM Corp., 287 F.Supp. 143, 162 (D. Md. 1968), aff'd 415 F.2d 55 (4th Cir. 1969) (recognizing that a trial court possesses broad discretionary powers in allowance or disallowance of costs). The Supreme Court has observed that taxable costs under Section 1920 are “modest in scope” and “limited to relatively minor, incidental expenses.” Taniguchi v. Kan.Pac. Saipan, Ltd., 132 S.Ct. 1997, 2006 (2012).

In order to recover costs, the prevailing party bears the burden of showing that the requested costs are allowable under Section 1920. Francisco v. Verizon S. Inc., 272 F.R.D. 436, 441 (E.D. Va. 2011). Once the prevailing party has met this burden, the burden shifts to the party or parties that did not prevail to identify any impropriety of taxing the proposed costs. Id.

III. DISCUSSION

There are several claimed costs to which Defendant has not objected. These costs include fees of the clerk, fees for service of the summons and subpoena, fees for witnesses, and docket fees under 28 U.S.C. §1923. Accordingly, no further discussion is required with respect to those costs and they will be taxed against Defendant. Defendant objects to $102, 688.31 in costs taxed as A) fees for printed and electronically recorded transcripts, B) fees and disbursements for printing, and C) fees for exemplification and costs of making copies. ECF No. 213. The Court will address Defendant’s objections to costs in these categories in turn.

A. Fees for Printed and Electronically Recorded Transcripts

Section 1920(2) authorizes the Court to tax as costs fees for “printed or electronically recorded transcripts necessarily obtained for use in the case.” The Clerk taxed $43, 336.85 in costs against Defendant in this category. Defendant objects to the taxation of video deposition costs totaling $12, 771.09, ASCII costs totaling $2, 712.80, and an expedited deposition transcript cost of $631.00.

i. Cost of Videotaping Depositions

Federal Rule of Civil Procedure 30(b)(3)(A) provides the party taking a deposition with the choice of alternative means for recording the testimony, including “by audio, audio-visual, or stenographic means.” The Fourth Circuit has determined that a prevailing party may recover costs for both transcribing and videotaping depositions necessarily obtained for use in the case. See Cherry v. Champion Int’l Corp., 186 F.3d 442, 449 (4th Cir. 1999) (“there surely are circumstances when both a videotape and a transcript of a deposition may be necessary.”). The concept of necessity for use in the case connotes something more than convenience or duplication to ensure alternative methods for presenting materials at trial. Id. Only transcription costs are recoverable unless there is a showing that a transcript would not have been sufficient for the need identified. Id.

Defendant contends that Plaintiff is not entitled to recover costs for both transcribing and videotaping seventeen depositions. Defendant argues the decision to videotape depositions was merely Plaintiff’s preference for how to present its case rather than a necessary expense taxable under Section 1920(2). ECF No. 213 at 2-3. Plaintiff claims the videotapes were necessary because it anticipated that witnesses would be unavailable for trial and sought to preserve those witnesses’ testimony by video.[3]See ECF No. 201-1 at 3 (“Each deposition [] was necessary because each of those depositions was considered an evidence deposition in which the witness might not be available at trial. The video transcript was necessary to ensure that the witness’s demeanor and credibility could be assessed at trial ...


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