United States District Court, W.D. Virginia, Roanoke Division
DIEDRA C. WEBB, Plaintiff,
KROGER LIMITED PARTNERSHIP I, a/k/a THE KROGER COMPANY, Defendant.
Michael F. Urbanski United States District Judge
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.
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.
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
28 U.S.C. § 1920.
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.
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, ...