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Kmart Corporation v. The Kroger Co.

United States District Court, N.D. Mississippi, Aberdeen Division

July 14, 2014

KMART CORPORATION, Plaintiff,
v.
THE KROGER CO. et al., Defendants.

MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT E & A SOUTHEAST LIMITED PARTNERSHIP'S MOTION FOR BILL OF COSTS

GLEN H. DAVIDSON, Senior District Judge.

On May 2, 2011, Plaintiff Kmart Corporation ("Kmart") commenced this suit against the Federal Emergency Management Agency; the City of Corinth; Fulton Improvements, LLC; Kansas City Southern Railway Company; E & A Southeast Limited Partnership; and The Kroger Co. On January 23, 2014, the Court entered an Order [360] and memorandum opinion [361] granting the motion for summary judgment [267] filed by Defendant E & A Southeast Limited Partnership ("E & A") against Plaintiff Kmart Corporation ("Kmart"). Specifically, the Court found that Kmart failed to raise a genuine dispute of fact on its claims against E & A and that the claims were time-barred by the statute of limitations in Mississippi Code § 15-1-49. Thus, the Court dismissed E & A as a party.[1]

E & A has now filed a petition for costs [370] with bill of costs [371]. Kmart has filed an objection [377] to the petition for costs. After the Court entered an Order [386] requesting supplementation of briefing and documentation to reflect the statutory allowances for requested witness travel expenses and fees, E & A filed a supplemental petition for costs [388], and Kmart filed an objection [289] to that supplemental petition. For the following reasons, the Court finds that E & A's request for costs shall be granted in part and denied in part.

Rule 54(d)(1) of the Federal Rules of Civil Procedure controls where a party seeks to recover costs, and it provides in relevant part that "costs - other than attorney's fees - should be allowed to the prevailing party." FED. R. CIV. P. 54(d)(1). "Rule 54(d)(1) codifies a venerable presumption that prevailing parties are entitled to costs. Notwithstanding this presumption, the word should' makes clear that the decision whether to award costs ultimately lies within the sound discretion of the district court." Marx v. Gen. Revenue Corp., ___ U.S. ___, ___, 133 S.Ct. 1166, 1172, 185 L.Ed.2d 242 (Feb. 26, 2013). "The trial court has broad discretionary powers in taxing costs...." While [Rule 54(d)(1)] does not prevent a trial court from requiring a prevailing party to bear its own costs, the language of the rule reasonably bears the intendment that the prevailing party is prima facie entitled to costs." Kent v. Vicksburg Healthcare, L.L.C., 534 F.Appx. 229, 230 (5th Cir. 2013) (per curiam) (quoting Walters v. Roadway Express, Inc., 557 F.2d 521, 526 (5th Cir. 1977) (citations and internal quotation marks omitted)."[I]t is incumbent on the losing party to overcome that presumption." Id. (quoting Walters, 557 F.2d at 526) (citation and internal quotation marks omitted). If the party against whom costs are taxed objects, the party seeking costs has the burden of supporting its request with evidence documenting the costs incurred, and proof, if applicable, as to whether the challenged amount was necessarily incurred in the case. Fogleman v. ARAMCO, 920 F.2d 278, 285-86 (5th Cir. 1991).

The following six categories of costs are recoverable:

(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. A district court may decline to award costs within the statutory categories, but it may not award costs outside those categories. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987). The "Supreme Court has indicated that federal courts may only award those costs articulated in [S]ection 1920 absent explicit statutory or contractual authorization to the contrary." Cook Children's Med. Ctr. v. The New England PPO Plan of Gen. Consolidation Mgmt. Inc., 491 F.3d 266, 274 (5th Cir. 2007). With all of the foregoing in mind, the Court now addresses each category of requested costs in light of Kmart's specific objections.

1. Deposition Transcript Fees

First, E & A requests recovery of costs for deposition transcripts obtained in the case. Costs related to the taking of depositions are allowed under Section 1920(2) and (4) "if the materials were necessarily obtained for use in the case." Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 536 (5th Cir. 1999). The Fifth Circuit has stated: "We have previously held that whether a deposition or copy was necessarily obtained for use in the case is a factual determination to be made by the district court. We accord great latitude to this determination.'" Rundus v. City of Dallas, Tex., 634 F.3d 309, 316 (5th Cir. 2011) (quoting Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993)). "[I]t is not required that a deposition actually be introduced in evidence for it to be necessary for a case - as long as there is a reasonable expectation that the deposition may be used for trial preparation, it may be included in costs." Stearns Airport Equip. Co., 170 F.3d at 536 (citing Fogleman, 920 F.2d at 285). Stated another way, "such costs are recoverable if the party making the copies has a reasonable belief that the documents will be used during trial or for trial preparation.'" See Rundus, 634 F.3d at 316 (quoting Fogleman, 920 F.2d at 285) (emphasis added). "[C]osts incurred merely for discovery' do not meet that standard." Id. (quoting Fogleman, 920 F.2d at 285-86) (internal citations and quotation marks omitted). The Fifth Circuit explained in Marmillion v. American International Insurance Co., 381 F.Appx. 421, 430 (5th Cir. 2010) (per curiam): "We have never required a prevailing party to demonstrate that a particular deposition was reasonably necessary at the time it was taken for a party to recover the costs of the deposition transcript.... [T]he pertinent question is whether the transcript was necessarily obtained for use in the case."

E & A claims it is entitled to $5, 643.50, the costs of eleven deposition transcripts obtained in the case of the following deponents: John R. Krewson, Dale Menendez, Donna Earnhart, Wissam Shtaih, David Huwe, Keith Davidson, Michael Schmidt, Jamie Monohan, Kelly Blake Mendrop, Robert H. Alexander, and Robert Eley. As stated above, E & A, as a prevailing party, is prima facie entitled to the costs of obtaining these deposition transcripts, but because Kmart has objected to the costs, E & A must support its request with evidence documenting the costs incurred and proof that the deposition transcripts were necessarily obtained for use in the case.

Kmart objects to E & A's inclusion of deposition transcripts in its bill of costs, arguing that because E & A never provided Kmart with a list of witnesses or deposition testimonies E & A expected to present at trial, it is not clear if any of the deposition transcripts were necessarily obtained for use in the case. Kmart further argues that even if some of the deposition transcripts were necessarily obtained for use in the case, the deposition transcripts of Michael Schmidt, Kelly Blake Mendrop, David Huwe, Donna Earnhart, and Wissam Shtaih were not, as the same were not even referenced in E & A's summary judgment motion and corresponding briefs. Kmart further argues that E & A's objection to Kmart's motion to extend the discovery deadline indicates that E & A felt that these particular deposition transcripts were not ...


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