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Delapp v. Shearer's Foods, Inc.

United States District Court, W.D. Virginia, Abingdon Division

April 29, 2016

NANCY DELAPP, Plaintiff,

Charlton R. Devault, Jr., Kingsport, Tennessee, and Michael E. Large, Large & Associates, Bristol, Tennessee, for Plaintiff

W. Eric Baisden and Josephine S. Floyd, Hahn Loeser & Parks, LLP, Cleveland, Ohio, and Patice L. Holland, Woods Rogers PLC, Roanoke, Virginia, for Defendant.


James P. Jones, United States District Judge

After prevailing against a former employee on her race discrimination and retaliation claims under the 1964 Civil Rights Act and § 1981, the employer has moved for taxation of costs, to which the plaintiff objects.


This matter is before the court on the plaintiff’s objections to the defendant’s bill of costs, which have been fully briefed. On February 26, 2016, the court granted summary judgment in favor of the defendant, Shearer’s Foods, Inc. (“Shearer’s”). On March 11, 2016, Shearer’s filed a motion to tax costs under Rule 54(d)(1) of the Federal Rules of Civil Procedure as the prevailing party in this action. Shearer’s seeks $1, 637.68 in total costs from the plaintiff. The plaintiff timely objected to the taxation of costs, seeking a reduction of various deposition costs and copying fees. For the reasons discussed below, the plaintiff’s objections are SUSTAINED in part and OVERRULED in part. Accordingly, Shearer’s bill of costs is GRANTED in part and DENIED in part, and Shearer’s shall be allowed costs in the amount of $901.25.


Rule 54 of the Federal Rules of Civil Procedure mandates that costs other than attorneys’ fees be allowed to the prevailing party, unless the court otherwise directs. Fed.R.Civ.P. 54(d). “While the district court has the discretion to deny an award of costs, it must articulate some good reason for doing so, as the language of Rule 54(d)(1) gives rise to a presumption that costs are to be awarded to the prevailing party.” Washington v. Kroger Ltd. P’ship I, No. 3:11-CR-00074, 2013 WL 439851, at *1 (W.D. Va. Feb. 5, 2013).

Under United States Code, Chapter 28, Section 1920, the court may tax certain litigation costs incurred by the prevailing party against the losing party. “Section 1920 enumerates expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d).” Kennedy v. Joy Techs., Inc., 484 F.Supp.2d 502, 503 (W.D. Va. 2007) (quoting Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987)). The costs under § 1920 include: (1) fees of the clerk and marshal; (2) fees of the court reporter; (3) fees and disbursements for printing and witnesses; and (4) fees for exemplification and copies of papers necessarily obtained for use in the case. To recover these costs, the prevailing party must file a bill of costs, which, upon allowance, shall be included in the judgment or decree. 28 U.S.C. § 1920. Additionally, § 1924 requires that the party submitting the bill of costs aver that the bill is “correct and has been necessarily incurred in the case and that the services for which fees have been charged were actually and necessarily performed.” 28 U.S.C. § 1924.

Since summary judgment was granted in favor of Shearer’s, it is the prevailing party entitled to recover costs. As such, Shearer’s bears the burden of showing that the requested costs are allowable under § 1920. Cofield v. Crumpler, 179 F.R.D. 510, 514 (E.D. Va. 1998). Once the prevailing party has carried its burden, the burden then shifts to the losing party to identify any impropriety of taxing the proposed costs. Francisco v. Verizon S., Inc., 272 F.R.D. 436, 441 (E.D. Va. 2011).

A. Deposition Costs.

The parties first dispute the amount that should be awarded in deposition costs. Shearer’s contends it is owed $1, 595.20 for costs associated with the deposition of the plaintiff. This total includes the cost of the original transcript, an expedited fee, the court reporter’s attendance fee and mileage, and the cost for the court reporter to prepare exhibits. The plaintiff argues that at most, Shearer’s may be entitled to recover only the basic cost of the deposition transcript.

Section 1920(2) permits the prevailing party to recover costs for “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). The Fourth Circuit has held that costs of a deposition, including transcript fees, should be awarded “when the taking of a deposition is 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). “The basic standard to be applied in determining whether to allow the expense of a transcript as a taxable cost is whether it was necessarily obtained for use in the case, that is, whether it was necessary to counsel’s effective performance and proper handling of the case.” Scallet v. Rosenblum, 176 F.R.D. 522, 526 (W.D. Va. 1997) (citation omitted).

In the present case, I find that the deposition of the plaintiff was necessary to Shearer’s understanding of the claims against it and in preparing its defense. “Certainly, the defendant[] needed to explore the complaint and the best party with whom to do such exploration would be the plaintiff.” Id. at 528. I also conclude that obtaining the transcript of that deposition was necessary. “[T]he costs for a copy of a deposition transcript are also taxable if the deposition itself was reasonably necessary.” Adkins v. Crown Auto, Inc., No. 4:04CV00042, 2005 WL ...

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