United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART
DEFENDANTS' MOTION FOR APPROVAL OF THEIR PROPOSED BILL OF
RICHARD A. SCHELL, UNITED STATES DISTRICT JUDGE
following are pending before the court:
1. Defendants' motion for approval of their proposed bill
of costs (docket entry #849);
2. Plaintiff Raytheon Company's objections and response
to Defendants' motion for approval of their proposed bill
of costs (docket entry #850);
3. Reply in support of Defendants' motion for approval of
their proposed bill of costs (docket entry #851); and
4. Plaintiff Raytheon Company's sur-reply to
Defendants' motion for approval of their proposed bill of
costs (docket entry #870).
considered the motion and the responsive briefing thereto,
the court finds that the motion should be granted in part.
March 31, 2016, the court entered a final judgment in this
matter. The court ordered that the Plaintiff take nothing
from the Defendants. The court further ordered that costs of
court should be taxed against the Plaintiff. On April 14,
2016, the Defendants filed their proposed bill of costs;
however, the Defendants advised the court that the Plaintiff
needed additional time to review the proposed bill of costs.
On April 29, 2016, the Plaintiff filed its notice of appeal.
On May 11, 2016, the Defendants filed their notice of appeal.
The parties' respective appeals are currently pending
before the United States Court of Appeals for the Federal
on July 20, 2016, the Defendants filed the instant
“Motion for Approval of Their Proposed Bill of
Costs.” In their motion, the Defendants explained that
the parties conferred on the Defendants' cost application
and reached an agreement on all categories of recoverable
costs (in an amount totaling $121, 177.08) except for the
category concerning fees for witnesses. In their motion, the
Defendants sought to recover costs for witnesses in the
amount of $74, 898.64. On August 3, 2016, the Plaintiff filed
its response in opposition to the Defendants' request. In
its opposition, the Plaintiff advised the court that the
parties had reached an agreement in the amount of $40, 000
for witness fees. However, the Plaintiff requested that the
Defendants agree to abate payment of all costs until after
the appeal was resolved. The Defendants do not agree to the
Defendants' reply brief, the Defendants abandoned their
original $74, 898.64 witness fee request and now currently
seek an amount of not less than $40, 000 for witness fees.
While the Defendants' updated witness fee request is in
accord with the agreement reached among the parties, the
request is a randomly agreed upon number that does not
correspond to the documentation attached to the
Defendants' motion or reply brief.
court notes that the Plaintiff, in its response and sur-reply
briefs, objects to certain categories contained in the
Defendants' request for witness fees. The Plaintiff filed
an umbrella objection, arguing that the Defendants are not
entitled to recover any witness fees (except for the $40
attendance fees for the days of testimony and travel) because
all of the witnesses were employees of the Defendants at the
time of the trial and testified in their capacities as
employees. The Plaintiff notes that 28 U.S.C. § 1920
prohibits parties from recovering witness fees and related
travel and subsistence expenses as costs. The Plaintiff
argues that this prohibition extends to employees of
corporate defendants who provide testimony on behalf of the
corporate defendants. The Plaintiff explains, then, that such
witnesses are, therefore, only entitled to statutory witness
fees and subsistence allowances for the days they appeared as
witnesses. The Plaintiff relies on Hodge v. Seiler
558 F.2d 284, 287 (5th Cir. 1977) and Honestech, Inc. v.
Sonic Sols., 725 F.Supp.2d 573, 583-84 (W.D. Tex. 2010).
court notes that 28 U.S.C. § 1920(3) provides that
“A judge or clerk of any court of the United States may
tax as costs the following: (3) Fees and disbursements for
printing and witnesses.” In Hodge, the court
cited to the general rule that “‘[t]he expenses
of witnesses who are themselves parties normally are not
taxable.'” Hodge, 558 F.2d at 287, quoting
Wright & Miller, Federal Practice and Procedure: Civil
§ 2678 p. 229. The Hodge case, however, is
distinguishable from the instant case because the
Hodge court denied an individual plaintiff's
request for travel costs. The Hodge case did not
involve the reimbursement of fees to a corporate defendant.
However, the Hodge case relied on Wright &
Miller, supra., which provides, in part, as follows:
The expenses of witnesses who are themselves parties normally
are not taxable. For example, real parties in interest or
parties suing in a representative capacity are not entitled
to fees or allowances as witnesses. The expenses of a
director or officer of a corporation who is not personally
involved in the litigation may be taxable, however, even if
that individual is testifying on behalf of the organization
and the latter is a party to the suit.
& Miller, Federal Practice and Procedure: Civil §
2678, citing Electronic SpecialtyCo. v.
International Controls Corp., 47 F.R.D. 158, 162
(S.D.N.Y. 1969) (“The expenses of a director or officer
can be allowed even if they are testifying on behalf of a
corporate party to the suit ‘so long as their interest
in the litigation is no more than a natural concern for the
welfare of the corporation as opposed to actual participation
in the litigation to the extent that they become identifiable
as a party in interest.'”) (remaining citations
omitted). Here, the ...