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Smallwood v. T&A Farms

United States District Court, S.D. Georgia, Waycross Division

June 29, 2017

JOHN SMALLWOOD, Plaintiff,
v.
T&A FARMS, TIMOTHY DALE DAVIS, ALPHINE DAVIS, and STACEY DINWIDDIE, Defendants.

          ORDER

          HON. LISA GODBEY WOOD, UNITED STATES DISTRICT JUDGE.

         Defendants' Bill of Costs, dkt. no. 120, will be TAXED in part to Plaintiff for the reasons below.

         Background

         Represented by counsel, Plaintiff sued Defendants for race discrimination on October 28, 2014. Dkt. No. 1. Defendants prevailed at a jury trial that concluded on April 26, 2017. Dkt. No. 117. Defendants filed their bill of costs on May 10, 2017. Dkt. No. 120. The bill is fully briefed and ripe for disposition. Dkt. Nos. 123-27.

         Legal Standard

         Costs that are statutorily authorized are presumptively allowed to a prevailing party. Fed.R.Civ.P. 54(d)(1); Grady v. Bunzl Packaging Supply Co., 161 F.R.D. 477, 478 (N.D.Ga. 1995) (citing W.Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83 (1991)). "The non-prevailing party bears the burden of demonstrating that a challenged cost is not taxable." United States v. Aegis Therapies, Inc., No. CV 210-72, 2015 WL 8677972, at *2 (S.D. Ga. Dec. 11, 2015). The district court has discretion not to award costs. Chapman v. AI Transp., 229 F.3d 1012, 1038 (11th Cir. 2000) (en banc). But that discretion "is not unfettered." Id. at 1039 (citing Head v. Medford, 62 F.3d 351, 354-55 (11th Cir. 1995) (per curiam)). "To defeat the presumption and deny full costs, a district court must have and state a sound basis for doing so." Id.

         " [A] non-prevailing party's financial status is a factor that a district court may, but need not, consider . . . ." Id.; see also Ang v. Coastal Int'l Sec, Inc., 417 F.App'x 836, 838 (11th Cir. 2011) (per curiam). "If a district court . . . chooses to consider the non-prevailing party's financial status, it should require substantial documentation of a true inability to pay." Id. "Moreover, when awarding costs a district court should not consider the relative wealth of the parties." Id. "Even in those rare circumstances where the non-prevailing party's financial circumstances are considered . . ., a court may not decline to award any costs at all." Id.

         DISCUSSION

         Some of the costs sought by Defendants will be taxed.

         I. SERVICE COSTS ARE TAXED.

         Plaintiff first contends that "fees of services of summons of subpoena" cannot be taxed. Dkt. No. 123 at 3. Defendants actually sought to tax "[f]ees for service of summons and subpoena." Dkt. No. 120 at 1. Such a cost category appears on this Court's standard bill of costs, see id., and it is statutorily authorized even though Defendants used a private process-server. U.S. EEQC v. W&O, Inc., 213 F.3d 600, 623-24 (11th Cir. 2000).

         II. DEFENDANTS' TRANSCRIPT TAX IS REDUCED DUE TO AN UN-ITEMIZED RECEIPT.

         The transcription cost requested by Defendants must be reduced. The invoice they provided is not itemized-it simply states that $1613.80 is due for the original and a copy of three different depositions. Dkt. No. 120 at 6. This "does not preclude an award of costs when counsel declares under penalty of perjury that the costs are correct and necessarily incurred." Frischhertz v. SmithKline Beechan Corp., Civ. A. No. 10-2125, 2013 WL 3894021, at *4 (E.D. La. July 26, 2013); see also Hassinger v. JP Morgan Chase & Co., Civ. A. No. 06- 2931, 2009 WL 2382960, at *1 (E.D. La. July 27, 2009). Here, counsel made such a declaration. Dkt. No. 120 at 1.

         But, as Plaintiff points out, the invoice might reflect impermissible costs like "delivery fees[ ] [and] shipping handling charges." Dkt. No. 123 at 4. This objection is valid. See United States ex rel. King v. Solvay S.A., Civ. A. No. H-06-2662, 2016 WL 3523873, at *4-5 (S.D. Tex. June 28, 2016), appeal filed, 2016 WL 3523873 (5th Cir. Aug. 1, 2016); Am. Guarantee & Liab. Ins. Co. v. U.S. Fidelity & Guar. Co., No. 4:O6CV655, 2010 WL 1935998, at *12 (E.D. Mo. May 10, 2010). To find the proper reduction, the Court observes that the United States Postal Service offers priority, one-day, flat-rate shipping for three-pound envelopes from the transcript company's zip code to defense counsel's for $23.85. Postage Price ...


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