United States District Court, W.D. Virginia, Charlottesville Division
K. MOON UNITED STATES DISTRICT JUDGE.
Norman K. Moon This matter is before the Court upon
Plaintiff's Bill of Costs, which was filed on December
12, 2016. (Dkt. 133). Plaintiff is seeking $4, 443.20 against
all defendants. Defendant Hoar filed a brief in opposition,
(dkts. 134-35), joined by Defendants Apple, Building
Industries, and Gulf Insurance Company, (dkts. 136-37),
arguing that some of Plaintiff's costs are not
recoverable under 28 U.S.C. § 1920. Because some of the
costs are indeed not permitted by § 1920, the Court will
award Plaintiff costs in the amount of $3, 118.70.
a federal statute, these rules, or a court order provides
otherwise, costs-other than attorney's fees-should be
allowed to the prevailing party.” Fed.R.Civ.P.
54(d)(1). This “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). Pursuant to 28 U.S.C. § 1920,
six categories of costs may be taxed to the losing party,
including: “[f]ees of the clerk and marshal, ”
“[f]ees for printed or electronically recorded
transcripts necessarily obtained for use in the case, ”
“[f]ees and disbursements for printing and witnesses,
” and “the costs of making copies of any
materials where the copies are necessarily obtained for use
in the case.” 28 U.S.C. § 1920. Only these six
categories are properly taxed, and 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).
object to various costs found in Plaintiff's Bill of
Costs. Each objection will be considered in turn.
Private Process Servers
first objection is to the cost of private process servers,
which totaled $945.00. They correctly state that
“private process servers, unlike fees for marshals, are
not included in the plain language of § 1920.”
(Dkt. 135 at 3). The issue of taxing private process server
fees is an open question, evidenced by a circuit split.
See, e.g., Alflex Corp. v. Underwriters
Labs., 914 F.2d 175, 178 (9th Cir. 1990) (permitting
taxation of private process server fees); Crues v. KFC
Corp., 768 F.2d 230, 234 (8th Cir. 1985) (refusing to
tax private process server fees).
Fourth Circuit has not yet tackled this question, so the
Court must consider the correct approach to adopt. On the one
hand, “there is no obvious policy reason why private
process server fees should not be recoverable, ”
Mayse v. Mathyas, No. 5:09-cv-00100, 2010 WL
3783703, at *4 (W.D. Va. Sept. 28, 2010), and a “clear
majority of circuit courts” permit the taxing of
private process server fees. Schwarz & Schwarz of
Virginia, LLC v. Certain Underwriters at Lloyd's,
No. 6:07-cv-00042, 2010 WL 452743, at *3 (W.D. Va. Feb. 8,
2010). On the other hand, the plain language of § 1920
makes no mention of private process servers, and
“recent cases in the Western District of Virginia
reveal a tread against allowing the taxing of
private process server fees.” Scates v. Shenandoah
Mem'l Hosp., No. 5:15-CV-00032, 2016 WL 6879269, at
*1 (W.D. Va. Nov. 21, 2016) (emphasis added) (collecting
“this court is constrained to apply the statute as
written, ” the Court declines to tax the costs of
private process servers; it simply is not among the six
taxable costs listed in § 1920. Bellofatto v. Red
Robin Int'l, Inc., No. 7:14-cv-00167, 2015 WL
3661043, at *2 (W.D. Va. June 12, 2015). Until Congress
changes the language of § 1920 or the Fourth Circuit
makes a ruling on the issue, the Court will continue to
grapple with this question. By joining the trend within the
Western District of Virginia, the Court hopes to provide
consistency and predictability, which allows individuals and
entities within this district to plan accordingly. As a
result, Defendants' objection will be sustained, and
Plaintiff's costs will be reduced by $945.00.
Ancillary Deposition Costs
object to four different ancillary deposition costs: (1) an
expedited transcript; (2) exhibits; (3) shipping and
handling; and (4) a witness copy of the deposition
transcript. (Dkt. 135 at 5-6).
objected to a $140 fee for expediting deposition transcripts.
Fees for printed or electronically recorded transcripts are
taxable when “necessarily obtained for use in the
case.” 28 U.S.C. § 1920(2). As for expedited fees,
they may be taxed where those fees are “reasonably
justified” because “depositions occurred within
close proximity to a dispositive motions deadline due to a
compressed discovery schedule or delay based on circumstances
outside the [litigant's] control.” Scates,
2016 WL 6879269, at *2 (internal quotation marks and
citations omitted). Here, the Plaintiff appears to have acted
with reasonable diligence to complete discovery prior to the
dispositive-motions deadline of August 30, 2014. On July 15,
2014, Magistrate Judge Robert S. Ballou amended the pretrial
schedule because discovery had been “delayed for
reasons beyond the control of the parties.” (Dkt. 49).
Plaintiff emailed Defendants just two days later to schedule
depositions of John Apple and Martha Maine. (Dkt. 138-2). The
deposition was ultimately scheduled for August 14, 2014,
which allowed just two weeks before the motions deadline.
Under these circumstances, the ordering of an expedited
transcript appears to be reasonably justified; there was a
delay in discovery based on circumstances outside
Plaintiff's control, and Plaintiff acted expeditiously to
schedule depositions following Judge Ballou's order.
Accordingly, Defendants' objection will be overruled, and
the $140.00 fee for an expedited transcript will be taxed.
objected to $51.50 spent on deposition exhibits.
“[D]istrict courts in the Fourth Circuit have held that
a prevailing party may not tax certain expenses associated
with a deposition beyond the cost of the actual transcript
itself, such as costs for the inclusion of exhibits . . .
.” Delapp v. Shearer's Foods, Inc., No.
1:15-cv-20, 2016 WL 1718395, at *3 (W.D. Va. Apr. 29, 2016)
(citation omitted). Plaintiff has failed to demonstrate why
the Court should deviate from the policy set forth in
Delapp. In fact, Plaintiff withdrew its ...