United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE.
the Court is Defendant Lockhart Independent School
District's Motion to Alter, Amend, or Modify the Judgment
and Motion for Costs. (Dkt. 92). Also pending before the
Court are Plaintiff's objections to the Magistrate
Court's order awarding discovery sanctions against her
attorney. (Dkt. 97). Having reviewed the parties'
submissions, the relevant law, and the case record, the Court
issues the following order.
Magdalena Eubank was formerly an employee of Defendant
Lockhart Independent School District. After the termination
of her employment, she brought claims against Defendant for
failure to accommodate, discrimination, and retaliation under
the Americans with Disabilities Act and Texas Commission on
Human Rights Act, as well as a claim of First Amendment
retaliation under 42 U.S.C. § 1983. The court rendered
summary judgment in favor of Defendant on each claim on
January 17, 2017.
January 25, 2017, the Magistrate Court issued an order
granting a motion for sanctions that Defendant had filed in
relation to a discovery dispute. (Dkt. 84). The Magistrate
Court had found Plaintiff's objections to Defendant's
discovery requests to be baseless and imposed a sanction
against Plaintiff's attorney in the amount of $17,
995.50. On February 1, 2017, Defendant filed the
current motion for costs along with a motion to enforce the
sanctions against Plaintiff. (Dkts. 86, 87). Plaintiff
objected to the sanctions order on February 8, 2017.
the prevailing party in this case, seeks an award of costs in
the amount of $8, 316.58. Plaintiff opposes this award, at
least in part, on the ground that Defendant includes costs
that are unrecoverable under Rule 54 and 28 U.S.C. §
1920. Defendant clarifies in its reply that it is entitled to
costs broader than those allowed under § 1920 pursuant
to the ADA's fee-shifting statute, 42 U.S.C. §
Rule of Civil Procedure 54(d)(1) provides that
“[u]nless a federal statute, these rules, or a court
order provides otherwise, costs . . . should be allowed to
the prevailing party.” The rule “contains a
strong presumption that the prevailing party will be awarded
costs, ” and the court may not deny or reduce a request
for costs without a good reason for doing so. Pacheco v.
Mineta, 448 F.3d 783, 793 (5th Cir. 2006) (citing
Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir.
1981)). The expenses that a court may tax as costs under Rule
54(d) are enumerated in 28 U.S.C. § 1920. Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42
(1987). Additionally, 42 U.S.C. § 12205, the ADA's
fee-shifting statute, “allows a court to award the
defending party of an ADA action ‘reasonable
attorney's fees, including litigation expenses and costs,
' if the court finds the plaintiff's claim was
‘frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith.'”
Dutton v. Univ. Healthcare Sys., L.L.C., 136 F.
App'x 596, 604 (5th Cir. 2005) (quoting
Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
does not argue, and the Court has not previously found, that
Plaintiff's ADA claims were frivolous. Accordingly, an
award of costs under § 12205 is unwarranted. See
Id. The Court will consider whether the expenses
Defendant claims fall within the scope of allowable costs
under Rule 54 and § 1920.
asserts that several of Defendant's expenses are not
recoverable. First, she argues that Defendant's expenses
related to lodging, mileage, certified mail, parking,
telephone calls, tolls, and meals-amounting to $665.04-are
unrecoverable and should be disallowed. “It is well
settled that attorney travel expenses are not recoverable
under § 1920.” Jensen v. Lawler, 338
F.Supp.2d 739, 746 (S.D. Tex. 2004) (citing Coats v.
Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993)).
Likewise, expenses for certified mail and telephone calls are
not listed as recoverable under § 1920 and Defendant
furnishes no basis-other than § 12205-for their
recovery. See Maurice Mitchell Innovations, L.P. v. Intel
Corp., 491 F.Supp.2d 684, 686 (E.D. Tex. 2007)
(“Although the prevailing party is entitled to its
costs, [it] must still demonstrate that its costs are
recoverable under Fifth Circuit precedent . . . .”).
The Court will therefore deduct the amount of $665.04 from
the award of costs.
next argues that Plaintiff's expenses of $2, 130.74 for
private process servers is unrecoverable. Section 1920 allows
for the recovery of service of process by the U.S. Marshals,
see 28 U.S.C. § 1920(1), but “absent
exceptional circumstances, the costs of a private process
server are not recoverable under Section 1920.”
Marmillion v. Am. Int'l Ins. Co., 381 F.
App'x 421, 432 (5th Cir. 2010) (citing
Cypress-Fairbanks Ind. Sch. Dist. v. Michael, 118
F.3d 245, 257 (5th Cir. 1997)).
asserts that exceptional circumstances are present in this
case because its use of private process servers was
necessitated by Plaintiff's failure to provide adequate
discovery responses until late in the litigation. Defendant
served discovery on Plaintiff requesting information about
her medical providers on April 29, 2016, but Plaintiff
provided incomplete responses. Defendant sent six letters to
Plaintiff between July 7 and October 27, 2016, concerning her
incomplete responses. Defendant filed a motion to compel on
September 6, 2016, and supplemented that motion on October
28, 2016. After the Magistrate Court granted Defendant's
motion on November 8, 2016, Defendant claims that Plaintiff
supplemented her disclosures but still failed to provide
critical information. Because of this, Defendant states that
it had to undertake extensive independent research to find
the contact information for Plaintiff's medical
providers. Having done so by December 9, 2016, Defendant
asserts that it needed to act expeditiously to secure
Plaintiff's medical records by the trial date of February
21, 2017, and required private process servers in order to do
Court does not agree that these facts constitute exceptional
circumstances. Though Defendant was likely aware that
Plaintiff offered incomplete responses by June 2016, it did
not seek any relief from the Court until less than three
weeks before the close of discovery on September 23, 2016.
(Scheduling Order, Dkt. 18). While the Court appreciates
Defendant's attempts to resolve the dispute without the
involvement of the Court, it nonetheless finds that
Defendant's choice to delay action until up to six
fruitless letters had been exchanged contributed to its late
access to the requested information. Additionally, it is
suggested in Defendant's motion that defense
counsel's other engagements made it impractical to use
any alternative to private process servers between December
9, 2016, and February 21, 2017. The Court does ...