United States District Court, W.D. Virginia, Harrisonburg Division
MICHAEL F. URBANSKI UNITED STATES DISTRICT JUDGE.
matter is before the court on defendant Shenandoah Memorial
Hospital's ("SMH") bill of costs (ECF No. 85).
Plaintiff Tonya Scates ("Scates") filed a brief in
opposition (ECF No. 86), arguing that die bill of costs seeks
fees that are not recoverable under 28 U.S.C. § 1920.
SMH responded to Scates's brief in opposition. ECF No.
87. For the reasons that follow, the court will AWARD SMH
costs in the amount of $8, 445.50.
of the Federal Rules of Civil Procedure permits a prevailing
party to recover costs other than attorney's fees
"[u]nless a federal statute, these rules, or a court
order provides otherwise." Fed.R.Civ.P. 54(d)(1). This
rule "creates a 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)
(citations omitted). Congress has specified six categories of
costs that may properly be taxed to the losing party,
including "fees of the clerk and marshal, " and
"fees for . . . transcripts." 28 U.S.C. §
1920. Only these six categories are properly taxed; the court
may not impose costs on the losing party other than those
contemplated in § 1920. Crawford Fitting Co. v. J.
T. Gibbons. Inc.. 482 U.S. 437, 442 (1987).
argues that SMH's bill of costs exceeds the boundaries of
§ 1920 in two ways. First, SMH's bill of costs
includes fees for private process servers, which, unlike fees
for marshals, are not included in the plain language of
§ 1920. ECF No. 86, at 2. SMH responds by first pointing
out that "a 'clear majority of circuit courts
recognize private process server fees are also taxable
against the non-prevailing party.'" ECF No. 87, at 1
(quoting Schwarz & Schwarz of Va.. LLC v. Certain
Underwriters at Lloyd's. No. 6:07-cv-00042, 2010 WL
452743, at *3 (W.D. Va. Feb. 8, 2010)). SMH recognizes that
these fees are usually taxed at the rate the U.S. Marshals
Service would have charged, and therefore suggests the court
reduce these fees by $65.
the court in Schwarz & Schwarz noted that
"a clear majority of circuit courts" allow the
taxing of private process server fees, it also admitted that
"there is a split in the courts" on this issue.
2010 WL 452743, at *3; see Francisco v. Verizon S..
Inc., 272 F.R.D. 436, 442 (E.D. Va. 2011) ("Case
holdings in this District are divided on the issue of whether
fees for private process servers can be taxed as
costs."). This split has not resolved itself in the
almost seven years since Schwarz & Schwarz was
decided, and the Fourth Circuit has still not spoken directly
to this issue. However, recent cases in the Western District
of Virginia reveal a trend against allowing the taxing of
private process server fees. E.g., Bellofatto v.
Red Robin Intern. Inc.. No. 7:14cv00167, 2015 WL
3661043, at *2 (W.D. Va. June 12, 2015); Walker v.
Mod-U-Kraf Homes. LLC. No. 7:12cv00470, 2014 WL 2450118,
at *2 (W.D. Va. May 30, 2014); Whalen v. Rutherford.
No. 3:12cv00032, 2013 WL 5591933, at *1 (W.D. Va. Oct. 10,
2013). The court will follow this trend. Though "there
is no obvious policy reason why private process server fees
should not be recoverable, " Mayse v. Mathyas.
No. 5:09cv00100, 2010 WL 3783703, at *4 (W.D. Va. Sept. 28,
2010), private process server fees are not included in the
plain language of § 1920, and "this court is
constrained to apply the statute as written, "
Bellofatto. 2015 WL 3661043, at *2. Accordingly,
SMH's bill of costs is reduced by $195.
though Scates recognizes that SMH may tax deposition costs,
she argues that "the costs for expedited transcripts are
not recoverable" unless the prevailing party shows
necessity, which SMH has failed to do. ECF No. 86, at 2.
Accordingly, Scates contends SMH should not recover the $608
it paid for the expedited transcript of the deposition of
Debbie Campisi on August 5, 2016. Id. SMH responds
that it was necessary to expedite the delivery of the Campisi
transcript, because Campisi's deposition was voluminous,
and was taken only seventeen days before the dispositive
motions deadline. ECF No. 87, at 2. In the alternative, SMH
suggests that the court reduce this cost by only $63-the
amount attributable to its request to expedite the
transcript. Id.; see ECF No. 87-2 (noting a $.35 per
page "expedited premium, " which, for 180 pages,
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.'" Delapp v. Shearer's Foods.
Inc.. No. I:15cv00020, 2016 WL 1718395, at *2 (W.D. Va.
Apr. 29, 2016) (slip op.) (citing Lavay Corp. v. Dominion
Fed. Sav. & Loan Ass'n. 830 F.2d 522, 528 (4th
Cir. 1987)). Similarly, expedited fees may be taxed where
those fees are "reasonably justified." Mann v.
Heckler & Koch Def. Fund. No. I:08cv611, 2011 WL
1599580, at *5 (W.D. Va. Apr. 28, 2011). Courts in this
district have found reasonable justification for expedited
transcripts "where depositions occurred within close
proximity to a dispositive motions deadline" due to
"a compressed discovery schedule, " or delay based
on "circumstances outside the defendant's
control." Delapp, 2016 WL 1718395, at *2
(collecting cases); see McAirlaids. Inc. v.
Kimberly-Clark Corp., 2014 WL 495748, at *10 (W.D. Va.
Feb. 6, 2014).
pointed to no such factors here. This case was not subject to
a compressed discovery schedule, and SMH has not alleged any
delay due to Scates or any other uncontrollable
circumstances. Scates's Second Amended Complaint, filed
on November 17, 2015, mentions Campisi's presence at a
meeting in which Scates was given a corrective action
document, clearly indicating her importance in this matter.
ECF No. 26, ¶ 36. Moreover, Campisi was an employee of
SMH, and SMH presumably has been aware of Campisi's
involvement in the circumstances underlying this case since
the first complaint was filed in May of 2015. Campisi's
deposition was taken "by agreement of the parties on
July 11, 2016." ECF No. 87, at 2. SMH does not allege
that Scates insisted on this late date, and otherwise
provides the court no reason to think that, if SMH required
more time, it could not have simply agreed with Scates to
schedule the deposition earlier. Absent such an allegation,
SMH has failed to demonstrate that it was necessary to
expedite the transcript of Campisi's deposition.
Accordingly, SMH's bill of costs is reduced by $63-the
cost attributable to expediting the deposition request.
Scates's two objections to SMH's bill of costs are
SUSTAINED. Accordingly, the bill of costs is reduced by $258,
and SMH is AWARDED costs in the amount of $8, 445.50.
appropriate Order ...