United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
W. TITUS, UNITED STATES DISTRICT JUDGE.
five years ago, Plaintiffs Lord & Taylor, LLC and LT
Propco LLC (“Lord & Taylor”) sued Defendant
White Flint, L.P. (“White Flint”) alleging that
White Flint violated its agreement with Lord & Taylor to
operate a mall by demolishing the building and vacating other
tenants. ECF No. 1 ¶¶ 5-7, 12-13, 21-23. After a
multi-week jury trial in 2015, Lord & Taylor secured a
verdict of $31 million, which was affirmed by the Fourth
Circuit. ECF Nos. 395, 440-41. Lord & Taylor subsequently
filed its Bill of Costs, ECF No. 448, which the Clerk
reviewed, ultimately awarding Lord & Taylor $109, 033.08
of the requested $112, 007.20, ECF No. 479 at 1-2. White
Flint is now asking the Court to review the Clerk's Order
Taxing Costs (“Clerk's Order”). ECF No. 480.
Standard of Review
Rule of Civil Procedure 54(d)(1) provides: “Unless a
federal statute, these rules, or a court order provides
otherwise, costs-other than attorney's fees-should be
allowed to the prevailing party.” The Fourth Circuit
has held that “the rule creates the presumption that
costs are to be awarded to the prevailing party.”
Cherry v. Champion Int'l Corp., 186 F.3d 442,
446 (4th Cir. 1999). Thus, “it is incumbent upon the
unsuccessful party to show circumstances sufficient to
overcome the presumption favoring an award of costs to the
prevailing party.” Ellis v. Grant Thornton
LLP, 434 Fed.Appx. 232, 235 (4th Cir. 2011) (per curiam)
(citing Teague v. Bakker, 35 F.3d 978, 996 (4th Cir.
28 U.S.C. § 1920 sets forth the costs that a judge or
clerk of any United States court may award, including
“[f]ees for printed or electronically recorded
transcripts.” 28 U.S.C. § 1920(2). To be taxable,
a transcript must be “necessarily obtained for use in
the case, ” id., and “reasonably
necessary at the time of its taking.” LaVay Corp.
v. Dominion Fed. Sav. & Loan Ass'n, 830 F.2d
522, 528 (4th Cir. 1987). “[I]n determining whether to
award deposition transcript costs, a court examines whether
the deposition was reasonably necessary to the prevailing
party's case at the time it was taken, not whether it was
actually admitted at trial.” Simmons v.
O'Malley, 235 F.Supp.2d 442, 443 (D. Md. 2002)
(citing LaVay, 830 F.2d at 528) (awarding costs for
deposition transcripts of parties and expert witnesses).
Court, under the United States District Court for the
District of Maryland Guidelines for Bills of Costs
(2013) (“Guidelines”), taxation of costs
is entrusted to the Clerk in the first instance, but the
Clerk's discretion to award costs is limited.
Id. at 1. In the exercise of this discretion, the
Clerk may not tax costs not permitted by statute, case law,
or local guidelines. Id.
court reviews de novo the Clerk's taxation of costs.
See Fed. R. Civ. P. 54(d)(1); Schwartz v.
Rent-A-Wreck of Am., No. PJM 07-1679, 2016 WL 3906581,
at *2 (D. Md. July 14, 2016). “Although the district
court has the discretion to deny an award of costs, it must
‘articulat[e] some good reason' for its
denial.” Ellis, 434 Fed.Appx. at 235
(alteration in Ellis) (quoting Cherry, 186
F.3d at 446). “Among the factors that justify denying
an award of costs are: (1) misconduct by the prevailing
party; (2) the unsuccessful party's inability to pay the
costs; (3) the excessiveness of the costs in a particular
case; (4) the limited value of the prevailing party's
victory; or (5) the closeness and difficulty of the issues
decided.” Id. (citing Cherry, 186
F.3d at 446). In other words, there must “‘be an
element of injustice in a presumptive cost award.'”
Id. (quoting Cherry, 186 F.3d at 446).
Court will not exercise its discretion to deny Lord &
Taylor's Bill of Costs. The Court finds no basis to do so
as the Ellis factors are not present in this case:
(1) Lord & Taylor did not commit misconduct (nor does
White Flint allege that it did); (2) White Flint has
presented no evidence of its inability to pay the costs; (3)
given the nature and length of the litigation and extensive
discovery required, the costs are not excessive; (4) Lord
& Taylor's jury verdict was significant; and (5)
although White Flint argues that the Fourth Circuit opined on
one issue of first impression, ECF No. 480-1 at 3, courts
that have denied costs based on a case's closeness and
difficulty “generally have done so following a lengthy
trial that adjudicated novel issues.” Grochowski v.
Sci. Applications Int'l Corp., No. ELH-13-3771, 2017
WL 121743, at *4 (D. Md. Jan. 12, 2017) (collecting cases).
extent White Flint objects to the Clerk's Order, having
conducted a de novo review, the Court finds that the
Clerk's taxation was appropriate. Among White Flint's
principal objections are to the costs of deposition
transcripts for Eugene Kahn, Lawrence Lerner, and Francine
Waters. ECF No. 480-1 at 15. The Clerk denied Lord &
Taylor these costs because the witnesses “were not
noticed by Defendant, did not testify at trial, and the
transcripts were not used in support of any motion.”
ECF No. 479 at 7-8. The Clerk correctly stated that
“the list of examples of taxable deposition categories
in the Guidelines is not exhaustive, ” but
found that “the justification for these transcripts
falls short of the reasonably necessary standard.”
Id. at 8. Moreover, the Clerk noted that Lord &
Taylor “did not respond to Defendant's challenges
of these costs.” Id.
Court disagrees with the Clerk's analysis of these costs.
In a footnote in its Reply in Support of its Bill of Costs
(“Reply”), Lord & Taylor states that Lawrence
Lerner was one of White Flint's party representatives,
and Eugene Khan was one of White Flint's named experts.
ECF No. 482-2 at 10 n.5. “Reasonable trial preparation
. . . ordinarily includes review of the deposition
transcripts of the parties and their experts, either to
prepare one's own witnesses for cross-examination or to
prepare to perform the cross-examination of the adverse party
and her witnesses.” Simmons, 235 F.Supp.2d at
443. Accordingly, White Flint's objections to the costs
of Mr. Lerner's and Mr. Khan's deposition transcripts
are overruled, and the costs will be awarded.
Memorandum in Support of its Bill of Costs and Reply, Lord
& Taylor asserts that Francine Waters was identified by
White Flint as a person with knowledge of relevant facts. ECF
Nos. 482-1 at 11, 482-2 at 10 n.5. White Flint concedes that
Ms. Waters's deposition was reasonably
necessary but argues that it does not “fall
within any of the taxable categories enumerated in the
Guidelines.” ECF No. 480-1 at 15. As noted in
the Clerk's Order, however, the list of categories is
“not exhaustive, ” ECF No. 479 at 8, and the
Guidelines are not binding on this Court. Moreover,
the deposition of an individual identified by the opposing
party as possessing relevant information meets the
LaVay standard of being reasonably necessary. Thus,
in the absence of any evidence to the contrary, the cost of
Ms. Waters's deposition transcript will be awarded.
it is, this 11th day of September, 2018, by the United States
District Court for the District of Maryland hereby
that the Motion for Review of the Clerk's Order Taxing
Costs [ECF No. 480] ...