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In re Complaint of ENSCO Offshore Co.

United States District Court, S.D. Texas, Houston Division

February 16, 2017

In the Matter of the Complaint of ENSCO Offshore Company, as Owner of the modu ENSCO 74 for Exoneration from or Limitation of Liability,

          OPINION AND ORDER

          MELINDA HARMON UNITED STATES DISTRICT JUDGE.

         Pending before the Court in the above referenced exoneration from or limitation of liability action, pursuant to 46 U.S.C. § 30501, et seq., civil and maritime, in which the Fifth Circuit has affirmed this Court's final judgment, including an award of taxable costs, in favor of ENSCO Offshore Company (“ENSCO”) against Claimants SKS OBO & Tankers AS and Kristian Gerhard Jebsen Skipsrederi AS (collectively, “KGJS”), are the following: (1) ENSCO's bill of costs seeking $263, 988.90 (#191; ENSCO's supplemental memorandum #196 (supporting invoices and information for claimed costs and additional costs for transcripts not included in the original bill); and supplement #201 (requesting $104.50 for copies at $.15 per page on appeal)); (2) KGJS's objections (#192) to amounts claimed in ENSCO's original bill of costs; (3) KGJS's objections (#197) to #196; and (4) KGJS's response (#204) to #201.

         Standard of Review

         Under Federal Rule of Civil Procedure 54(d)(1), “‘[u]nless a federal statute, these rules, or a court order provides otherwise, costs--other than attorney's fees--should be allowed to the prevailing party.'” Baisden v. I'm Ready Productions, Inc., 793 F.Supp.2d 970, 973 (S.D. Tex. 2011), citing Pacheco v. Mineta, 448 F.3d 783, 793 (5th Cir.), cert. denied, 549 U.S. 888 (2006).

         Taxation under Rule 54(d) is subject to the court's discretion, but the rule “‘contains a strong presumption that the prevailing party will be awarded costs.'” Id., citing id. Nevertheless courts have held that a court must state a good reason for denying or reducing a prevailing party's request for costs. Id., citing id. To determine who is the prevailing party the court must view the case as a whole; “ party need not prevail on every issue in order the be entitled to costs.” Fogelman v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991).

         The court may only tax costs for items listed in 28 U.S.C. § 1920. Id., citing Id. Title 28 U.S.C. § 1920 (“Taxation of Costs”), as amended in 2008, provides, A judge or clerk of any court of the United States may tax as costs the following:

(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[1];
(5) Docket fees under section 1923 of this title; and
(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.

         “[E]xpenses that are not authorized by statute must be borne by the party incurring them.” Baisden, 793 F.Supp.2d at 973. The “‘district court may decline to award costs listed in the statute but may not award costs omitted from the list.'” Id., quoting Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993), cert. denied, 510 U.S. 1195 (1994). When the opposing party raises objections to the costs sought, the costs seeker “bears the burden of verifying that the costs were necessarily incurred in the case rather than just spent in preparation and litigation of the case.” Baisden, 793 F.Supp.2d at 973, citing Fogelman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991).

         Title 28 U.S.C. § 1821, in conjunction with 28 U.S.C. § 1920(3), governs necessary expenses for witnesses who appear at deposition and or trial, including fees, travel expenses, and lodging.[2] Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994); Baisden, 793 F.Supp.2d at 979. “28 U.S.C. § 1821(d)(2) does not . . . permit the [subsistence] award of ‘actual costs, ' but limits such awards to the per diem rate.'” Baisden, 793 F.Supp.2d at 980, citing United Teacher Associates Insurance Co. v. Union Labor life Insurance Co., 414 F.3d 558, 575 & n.12 (5th Cir. 2005).

         ENSCO's Bill of Costs (#191 and 196)

         ENSCO's bill of costs, supported by an affidavit from counsel Lawrence R. Marcay, III, and supplemented by #196, requested the following:

Fees of the Clerk ............... $350.00[3]
Fees for service of summons and subpoena . . .$4, 892.30[4]
Fees for printed or electronically recorded transcripts necessarily obtained for use in the case . . $62, 145.89[5]
Fees and disbursements for printing ..... $3, 397.68[6]
Fees for witnesses ............. $30, 711.52[7]
Fees for exemplification and costs of making copies of any materials where the copies are necessarily obtained for use in the case ............. $71, 518.28[8]
Other costs ................ $95, 527.23
ENSCO's Supplemental Bill of Costs ...... $184.50[9]
TOTAL ................... $264, 173.40[10]

         Counsel's affidavit states that the additional “other costs” (listed on Exhibit E) are costs “that equity mandates be taxable in this matter, ” including $75, 752 for the Bond for Stipulation of Value, which was recorded with the Court's Clerk, and $19, 775.23 in travel costs relating to attending a vessel inspection and crew depositions in Turkey and two trips to Norway to attend the 30B(6) deposition of a claimant.

         KGSJ's Objections

         Because in #196 ENSCO has satisfied a number of KGSJ's objections to the absence of evidence to support its claims of cost, the Court will not address those challenges.

         KGJS first objects to ENSCO's effort to recover (1) bond premiums, publishing costs and attorney travel costs; (2) fees paid to private process servers; (3) deposition costs without any showing that such depositions were necessarily obtained in preparation for this case; (4) alternatively, for excessive deposition costs beyond the claims of KGJS; (5) excessive costs for copying documents; (6) excessive witness costs associated with lodging per diems and unsupported air fare reimbursements; (7) witness costs in connection with the presence of ENSCO's corporate representative; and (8) witness costs claimed for witnesses who did not actually testify at trial.

         “The great weight of authority establishes that because bond premiums are not listed in [§ 1920], they are unrecoverable as costs.” Oldendorff Carriers GmbH & Co. KG v. Grand China Shipping (Hong Kong) Co. Ltd., Civ. A. No. 2:12-CV-74, 2013 WL 5424956, at *2 (S.D. Tex. Sept. 26, 2013). Therefore, argues KGJS, ENSCO's claim for $75, 752.00 for bond premiums paid for a “Bond for Stipulation of Value, ” should not be allowed.[11]

         KGJS also objects to ENSCO's request to recover $19, 775.23 in “other costs” relating to travel and lodging of its attorneys for three international trips for depositions and vessel inspections, as well as to $3, 397.68 for costs publishing the Legal Notice of ...


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