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Hostingxtreme Ventures LLC v. Bespoke Group, LLC

United States District Court, N.D. Texas, Dallas Division

June 20, 2019

HOSTINGXTREME VENTURES, LLC, Plaintiff,
v.
BESPOKE GROUP, LLC DIVYESH PATEL, and HINA PATEL, Defendants.

          MEMORANDUM OPINION AND ORDER

          IRMA CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE

         Referred to U.S. Magistrate Judge [1]

         Before the Court is Plaintiff's Motion to Exclude Disallowable Costs, filed September 19, 2018 (doc. 461). Based on the relevant filings and applicable law, the plaintiff's motion is GRANTED, and the defendants' taxable costs will be reduced by $7, 862.02, for a total of $9, 167.84.

         I. BACKGROUND

         On April 22, 2014, HostingXtreme Ventures, LLC (Plaintiff) sued Bespoke Group, LLC (Bespoke), Divyesh Patel (Divyesh), and his wife, Hina Patel (Hina) (collectively Defendants), for breach of written contract, breach of the implied covenant of good faith and fair dealing, promissory estoppel, common law fraud, intentional interference with contractual rights, and negligent representation.[2] (See doc. 1.) On September 11, 2017, the Court granted summary judgment in favor of Defendants on all but one of Plaintiff's claims. (See doc. 454.) A jury rendered a verdict in Defendants' favor on Plaintiff's remaining claim on August 15, 2018. (Id.) On that same day, the Court entered a final judgment in Defendants' favor and taxed costs against Plaintiff. (Id.)

         On August 29, 2018, Defendants submitted their bill of costs seeking $13, 916.43 for “printed or electronically stored transcripts necessarily obtained for use in this case, ” and $3, 113.43 for “[f]ees and disbursements for printing, ” for a total of $17, 029.86. (doc. 458 at 1.)[3] On September 12, 2018, the Clerk taxed costs in that amount against Plaintiff. (doc. 459.)

         On September 19, 2018, Plaintiff filed a motion seeking review of the Clerk's taxing of costs under Fed.R.Civ.P. 54(d)(1). (doc. 461.) It seeks to exclude $2, 773.95 in “reproduction charges, ” $4, 040.82 in charges for “transcripts of hearings related to discovery motions . . . and discovery conferences between counsel, ” and $1, 047.25 in charges for costs related to Hina's deposition. (Id. at 3-5.) It argues that: (1) the reproduction charges are not allowable because they appear to be internal firm charges for copying, (2) there is no authority for the recovery of costs for transcripts of hearings on discovery motions or conferences between counsel, and (3) Hina's deposition was not necessarily obtained for use in this case. (Id.)

         Defendants filed their response on October 10, 2018, and Plaintiff did not reply. (doc. 467.) The motion is now ripe for recommendation.

         II. ANALYSIS

         Under Rule 54 of the Federal Rules of Civil Procedure, a prevailing party in a civil action is entitled to recover its costs unless otherwise directed by a court or statute. Fed.R.Civ.P. 54(d)(1). There is “a strong presumption that the prevailing party will be awarded costs.” Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985) (citing Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981)). This presumption is rebuttable, however, and the district court retains the discretion not to award costs. See United States v. D.K.G. Appaloosas, Inc., 829 F.2d 532, 539 (5th Cir. 1987).

         “[S]ection 1920 strictly limits the types of costs that may be awarded to a prevailing party.” Erfindergemeinschaft UroPep GbR v. Eli Lilly and Co., No. 2:15-CV-1202-WCB, 2017 WL 3044594, at *1 (E.D. Tex. July 18, 2017) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 440-41 (1987)). As noted by the Fifth Circuit Court of Appeals, “[t]he Supreme Court has indicated that federal courts may only award those costs articulated in section 1920 absent explicit statutory or contractual authorization to the contrary.” Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 529-30 (5th Cir. 2001).[4] The party seeking recovery of its costs bears the burden of proving the amount and necessity of its costs. See Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994); Fogleman v. ARAMCO (Arabian Am. Oil Co.), 920 F.2d 278, 285-86 (5th Cir. 1991).

         A. Printing Costs

         Plaintiff first argues that “reproduction charges” totaling $2, 773.95 are not allowable because they “appear to be . . . internal firm charge[s]” that were not “necessary or used in this case.” (doc. 461 at 3.) Defendants respond that they are entitled to recover these costs because they were incurred in this litigation for printing “non-dispositive motions, dispositive motions, discovery production, and deposition exhibits . . . .” (doc. 467 at 4.)

         Under § 1920(3), “[f]ees and disbursements for printing” are allowable taxable costs, provided that the prevailing party demonstrates that the printed documents were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(3); W&T Offshore, Inc. v. Apache Corp., No. H-11-2931, 2015 WL 12765421, at *2 (S.D. Tex. Oct. 28, 2015); see Fogleman, 920 F.2d at 286 (“reproductions necessarily obtained for use in the case are included within taxable costs, provided that the prevailing party demonstrates that necessity.”). The Fifth Circuit has explained that “[the losing party] should be taxed for the cost of reproducing relevant documents and exhibits for use in the case, but should not be held responsible for multiple copies of documents, attorney correspondence, or any of the other multitude of papers that may pass through a law firm's xerox machines.” Fogleman, 920 F.2d at 286. While taxable costs include charges for reproducing documents “as part of discovery and the copies of documents filed with ...


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