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Webb v. Kroger Limited Partnership I

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

June 18, 2017

DIEDRA C. WEBB, Plaintiff,
v.
KROGER LIMITED PARTNERSHIP I, a/k/a THE KROGER COMPANY, Defendant.

          MEMORANDUM OPINION

          Michael F. Urbanski United States District Judge

         Following entry of the court's February 14, 2017 Memorandum Opinion granting summary judgment in favor of defendant Kroger Limited Partnership I a/k/a The Kroger Company, Kroger filed a bill of costs in the amount of $12, 658.20. ECF No. 78. Plaintiff Diedra Webb filed a memorandum in opposition, arguing Kroger seeks fees that are not recoverable under 28 U.S.C. § 1920. ECF No. 80. Kroger replied. ECF No. 81. The parties did not request oral argument, and this matter is ripe for adjudication. For the reasons that follow, the court will sustain Webb's objections in part and AWARD Kroger costs in the amount of $5, 396.56.

         I.

         Rule 54 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). It is therefore "incumbent upon the unsuccessful party to show circumstances sufficient to overcome the presumption favoring an award of costs to the prevailing party." Ellis v. Grant Thornton LLP. 434 F.App'x 232, 235 (4th Cir. 2011) (citing Teague v. Bakker. 35 F.3d 978, 996 (4th Cir. 1994)). "Costs may be denied to the prevailing party only when there would be an element of injustice in a presumptive cost award." Cherry. 186 F.3d at 446.

         The court may only tax costs authorized by statute. Crawford Fitting Co. v. J. T. Gibbons. Inc.. 482 U.S. 437, 442, 445 (1987); Francisco v. Verizon Smith. Inc.. 272 F.R.D. 436 (E.D. Va. 2011). Congress has specified six categories of costs that may properly be taxed:

(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.

         In this case, Webb argues that Kroger's bill of costs exceeds the scope of costs allowable under § 1920. Specifically, Webb contends that Kroger seeks taxation of costs for private process servers, witness fees for a trial that never occurred, costs for expediting transcripts unnecessarily, witness fees associated with subpoenas duces tecum issued to witnesses who did not testify, and costs for copies that were not attributable to court submissions or production of documents to opposing counsel. The court will address each of Webb's arguments in turn.

         II.

         A.

         First, Webb objects to Kroger's claimed fees for private process servers, which are not among the enumerated costs set forth in § 1920. Fees of the clerk and marshal are expressly provided for under § 1920, but the plain language of the statute makes no mention of private process servers. "While there is a split in the courts as to whether fees for private process servers fall under that provision, a clear majority of circuit courts recognize private process server fees are also taxable against the non-prevailing party." 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). The Fourth Circuit has yet to weigh in on this issue. However, the recent trend in this district has been to apply § 1920 as written and find costs for service by a private process server are not recoverable under the statute. See, e.g.. Selective Way Ins. Co. v. Roseanne Browning Apple. No. 3:13-CV-00042, 2017 WL 111439 (W.D. Va. Jan. 11, 2017); Bellofatto v. Red Robin Int'l. 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 *3 (W.D. Va. May 30, ...


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