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Nall v. BNSF Railway Co.

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

September 6, 2017

MICHAEL NALL, et al, Plaintiffs
v.
BNSF RAILWAY COMPANY, et al, Defendants.

          OPINION AND ORDER

          MELINDA HARMON UNITED STATES DISTRICT JUDGE

         Pending before the Court in the above-referenced cause are Defendant BNSF Railway Company‘s (BNSF) Bill of Costs, Doc. 60, and Plaintiffs‘ Objections to Bill of Costs (Plaintiff‘s Objections), Doc. 62. Having considered the filings and relevant law, the Court overrules Plaintiffs‘ Objections except with regard to the sum of $148.00 for shipping and delivery fees. BNSF‘s Bill of Costs is granted in all other respects.

         I. Background

         In an Opinion and Order dated February 14, 2017, this Court granted Defendant BNSF‘s Motion for Summary Judgment. Doc. 57. Accordingly, judgment was entered in favor of BNSF and it was awarded costs in an amount to be determined after submission of a Bill of Costs. Doc. 58. On February 24, 2017, BNSF filed its pending Bill of Costs in which it seeks reimbursement for $7, 300.63 in fees. Doc. 60. On March 1, 2017, Plaintiffs filed their Objections to the Bill of Costs, Doc. 62, and BNSF responded on March 13, 2017, Doc. 64.

         II. Legal Standard

         Under Federal Rule of Civil Procedure 54(d), [u]nless a federal statute, [the Federal Rules of Civil Procedure], or a court order provides otherwise, costs-other than attorney‘s fees-should be allowed to the prevailing party. Fed.R.Civ.P. 54(d)(1). Pursuant to 28 U.S.C.§ 1920, the only costs that may be taxed are:

(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 title.

         Allowable costs are limited to these categories, and expenses that are not authorized by statute or contract must be borne by the party incurring them. See Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993) (district court may decline to award costs listed in the statute but may not award costs omitted from the list.).

         If the party being taxed does not specifically object to a cost, the presumption is that the cost was necessarily incurred for use in the case and will be taxed. Kirk v. Invesco, Ltd., No. CV H-15-833, 2017 WL 1078763, at *1 (S.D. Tex. Mar. 22, 2017) (citing Baisden v. I'm Ready Prods., Inc., 793 F.Supp.2d 970, 973 (S.D. Tex. 2011)). However, once an objection has been raised, the party seeking costs 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 Fogleman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991)).

         Ultimately, the court has discretion to determine the appropriateness of awarding costs to the prevailing party. Marx v. Gen. Revenue Corp.,568 U.S. 371, 377, 133 S.Ct. 1166, 1172-73, 185 L.Ed.2d 242 (2013); Matter of ENSCO Offshore Co., No. CV H-09-2838, 2017 WL 631936, at *1 (S.D. Tex. Feb. 16, 2017) (citing Baisden, 793 F.Supp.2d at 973). Nevertheless, the rule contains a strong ...


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