United States District Court, N.D. Texas, Dallas Division
WOODBERRY, as Next Friend and Guardian of the Person of JANE DOE, An Incapacitated Person, Plaintiff,
DALLAS AREA RAPID TRANSIT, MV TRANSPORTATION, INC., CEDRICK AGENT, and PURSUIT OF EXCELLENCE, INC., Defendants.
MEMORANDUM OPINION AND ORDER
LINDSAY UNITED STATES DISTRICT JUDGE.
the court is Plaintiff's Motion to Retax Costs (Doc.
251), filed April 7, 2017.[*] Having considered the motion,
response, reply, record, and applicable law, and for the
reasons set forth below, Plaintiff's Motion to Retax
Costs is denied in part and granted in part.
March 3, 2017, the court granted Defendants' Motion for
Summary Judgment (Doc. 246) and entered Judgment (Doc. 247),
which assessed taxable costs of court against Plaintiff. On
March 17, 2017, Defendants filed their Bill of Costs (Doc.
248), requesting taxable costs in the amount of $4, 537.95,
which includes $2, 737.95 for costs associated with obtaining
the deposition transcripts of Plaintiff's expert, and $1,
800 for fees Defendants paid to Plaintiff's expert for
her appearance at her deposition. Plaintiff challenges the
deposition transcript costs on the basis that Defendants have
failed to meet their burden of showing they were necessarily
obtained for use in this case. Plaintiff challenges the
expert fees as unrecoverable under applicable law. Plaintiff
asks the court to disallow or reduce these costs.
prevailing party is entitled to recover costs unless a
federal statute, the federal rules, or the court provides
otherwise. See Fed. R. Civ. P. 54(d)(1). Rule
54(d)(1) “contains a strong presumption that the
prevailing party will be awarded costs.” Pacheco v.
Mineta, 448 F.3d 783, 793 (5th Cir. 2006) (citation
omitted); see also Walters v. Roadway Express, Inc.,
557 F.2d 521, 526 (5th Cir. 1977) (noting that it is
incumbent on the losing party to overcome the presumption of
awarding costs to the prevailing party). A court “may
neither deny nor reduce a prevailing party's request for
costs without first articulating some good reason for doing
so.” Pacheco, 448 F.3d at 794 (citation
omitted). A district court has wide discretion in awarding
costs, but the discretion is not unfettered. See Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42
(1987). The court's discretion in taxing costs is limited
to the recoverable costs set forth in 28 U.S.C. § 1920.
their Bill of Costs, Defendants request $2, 737.95 for costs
incurred in connection with the deposition of Plaintiff's
expert, and $1, 800 for fees Defendants paid to
Plaintiff's expert for her appearance at her deposition.
Plaintiff objects to the costs associated with the deposition
transcript of Plaintiff's expert on the basis that
Defendants have failed to prove the transcript was
necessarily obtained for use in this case and contends that
the fees Defendants paid to Plaintiff's expert for her
time spent attending her deposition are not recoverable as
taxable costs. The court addresses these objections in turn.
seek $2, 737.95 in “[f]ees for printed or
electronically recorded transcripts necessarily obtained for
use in this case.” Bill of Costs 1 (Doc. 248). This
figure is derived from costs associated with the printed and
electronically recorded deposition transcript of Alexandria
Doyle, PhD, Plaintiff's designated expert. Plaintiff
objects to these costs, contending that Defendants have
failed to explain why these deposition costs were necessary.
related to printed or electronically recorded transcripts are
recoverable when they are necessarily obtained for use in the
case. 28 U.S.C. § 1920(2). The cost of a deposition is
taxable if the court finds that “all or any part of the
deposition was necessarily obtained for use in the
case.” Nissho-Iwai Co., Ltd. v. Occidental Crude
Sales, Inc., 729 F.2d 1530, 1553 (5th Cir. 1984)
(internal punctuation and citation omitted). “[A]
deposition need not be introduced into evidence at trial in
order to be ‘necessarily obtained for use in the
case.'” Fogelman v. ARAMCO, 920 F.2d 278,
285 (5th Cir. 1991). “If, at the time it was taken, a
deposition could reasonably be expected to be used for trial
preparation, rather than merely for discovery, it may be
included in the costs of the prevailing party.”
response to Plaintiff's challenge, Defendants argue that
the deposition transcript costs are taxable against Plaintiff
“because the Defendant used the testimony of Dr. Doyle
and exhibits from her deposition in their motion for summary
judgment, which the court granted on March 3, 2017[.]”
Defs.' Resp. 2. In Plaintiff's reply, Plaintiff
points out that “there are no references or citations
in Defendants' Motion for Summary Judgment, Brief, or
Appendix . . . to the deposition of Dr. Alexandria
Doyle.” Reply at 1-2 (original emphasis). Although
Plaintiff is correct that Defendants do not cite to, or rely
on, Dr. Doyle's deposition testimony in their Motion for
Summary Judgment, this does not end the inquiry.
October 5, 2015, Plaintiff designated Dr. Doyle as a retained
expert and stated that “Dr. Doyle is expected to
testify as to [Jane Doe's] damages and the causation for
those damages.” Pls.' FRCP 26(a)(2) Expert
Disclosures 1-2 (Doc. 39). On December 15, 2015, Defendants
took the oral and videotaped deposition of Dr. Doyle. On
January 19, 2016, Defendants filed a Motion to Strike, Limit,
or Exclude Testimony, arguing that Dr. Doyle's testimony
as to the alleged psychological injury suffered by Jane Doe
should be excluded under Federal Rule of Evidence 702 as
improper and unreliable. On January 19, 2016, Defendants
filed their respective Motions for Summary Judgment. In
response, Plaintiff relied heavily on the report of Dr.
Doyle. In reply, Defendants cited to Dr. Doyle's
deposition transcript and her expert report, arguing that
Plaintiff had failed to raise a genuine dispute of material
fact as to causation and damages sufficient to defeat summary
judgment. On March 3, 2017, the court granted Defendants'
respective Motions for Summary Judgment for reasons unrelated
to Dr. Doyle's expert report and denied as moot
Defendants' Motion to Strike, Limit, or Exclude the
Testimony of Dr. Doyle.
of whether relied upon by Defendants in their Motions for
Summary Judgment, given that Dr. Doyle was Plaintiff's
designated expert as to causation and damages, the court
determines that her deposition testimony could reasonably be
expected to be used for trial preparation, rather than merely
for discovery, and, therefore, it may be included in the
costs of Defendants as the prevailing party. See
Fogelman, 920 F.2d at 285 (“If, at the time it was
taken, a deposition could reasonably be expected to be used
for trial preparation, rather than merely for discovery, it
may be included in the costs of the prevailing