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Motis Energy, LLC v. SWN Production Company, LLC

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

June 19, 2019




         Before the Court in this breach of contract lawsuit is Defendant SWN Production Company, LLC's (“SWN”) Bill of Costs [Doc. # 133]. Plaintiff Motis Energy, LLC (“Motis”) filed Objections, [1] and SWN replied.[2] The matter is ripe for decision. Based on the parties' briefing, pertinent matters of record, and relevant legal authority, SWN's Bill of Costs is granted in large part and Motis's Objections are overruled in large part.

         I. BACKGROUND

         On January 31, 2019, the Jury in this case returned a verdict in favor of SWN.[3] Based on that verdict, the Court entered judgment in favor of SWN and adjudged that Motis take nothing on its claims.[4] SWN seeks $42, 050.91 in taxable costs as the prevailing party[5] under Federal Rule of Civil Procedure 54 and 28 U.S.C. § 1920.[6] Motis objects to SWN's various requested costs.


         Under Federal Rule of Civil Procedure 54(d)(1), “[u]nless a federal statute, [the federal] rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party.” A district court, however, “may only award those costs articulated in [28 U.S.C. §] 1920 absent explicit statutory or contractual authorization to the contrary.” See Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 529 (5th Cir. 2001).

         Under 28 U.S.C. § 1920, a court may tax the following costs: (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; and (6) compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services. See 28 U.S.C. § 1920. The Court is to give “careful scrutiny” to the items proposed by the prevailing party. See La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 335 (5th Cir. 1995). A district court has broad discretion in determining the appropriateness of an award of costs. See Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000).


         A. Deposition Costs

         Motis contends that the Court should not award SWN costs for rough drafts of deposition transcripts and expedited delivery of deposition transcripts with respect to three witnesses: Joseph Caschera, Kenneth Higley, and Jeffrey Leri. Motis contends that there were no pressing circumstances when Caschera's and Higley's depositions were taken in June 2018 and when Leri's deposition was taken in August 2018 that compelled a rapid turnaround.

         The Court is unpersuaded. Expedited transcripts are taxable as costs if “the special character of the litigation necessitates expedited receipt of the transcript.” Fogleman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991). SWN establishes that the character of this litigation necessitated the expedited delivery of Caschera's, Higley's, and Leri's deposition transcripts.

         Caschera's and Higley's depositions were taken during a five-day stretch.[7]Because these witnesses were outside the subpoena power of the Court, their deposition testimony had to be elicited for trial purposes in case the witnesses were not available at trial. The expedited transcripts and rough drafts were accordingly required for adequate trial preparation, as SWN's counsel needed to review the testimony of each witness in preparation for questioning the following witnesses. Moreover, at the time the expedited transcripts were ordered, the parties' motions deadline was July 2, 2018, just weeks away.[8] Similarly, Leri's deposition testimony on August 29, 2018, was integrated into SWN's September 7, 2018, response to Motis's partial motion for summary judgment.[9]

         Motis next objects to the assessment of costs for the videotaped depositions of Daniel Klingerman and Joseph Caschera. Motis contends ordering videotaped depositions was unnecessary because Motis presented Klingerman and Caschera to testify at trial.

         The Court is unpersuaded by Motis's objection. Klingerman and Caschera, as residents of Pennsylvania, were outside the subpoena power of the Court. SWN could not assume that Klingerman or Caschera would attend trial. Indeed, no trial date had been set when the depositions were taken. SWN was reasonable in obtaining video depositions of these two witnesses as necessary to prepare for trial. See Griffith v. Mt. Carmel Med. Ctr., 157 F.R.D. 499, 502 (D. Kan. 1994) (“[I]n the absence of actual use, the prevailing party must show that the facts known when the deposition was taken made it appear reasonably necessary to record the deposition on videotape.”). Cf. Allstate Ins. Co. v. Plambeck, 66 F.Supp.3d 782, 791 (N.D. Tex. 2014) (“Given the nature of this litigation and the possibility that individual defendants might not appear at trial or be within the Court's subpoena power, the undersigned finds that Plaintiffs reasonably expected, at the time the depositions were taken, that Plambeck, Capobianco, ...

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