United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
C. Godbey, United States District Judge
Order addresses Plaintiff Pizza Inn, Inc.'s (“Pizza
Inn”) renewed motion for judgment as a matter of law
, Pizza Inn's objection to Defendant Bob
Clairday's bill of costs , and Clairday's motion
for attorneys' fees . For the following reasons, the
Court denies Pizza Inn's renewed motion for judgment as a
matter of law, sustains Pizza Inn's objection to
Clairday's bill of costs, taxes court costs against Pizza
Inn, and grants Clairday's motion for attorneys'
Origins of the Motions
breach of contract dispute concerned two development
agreements between Pizza Inn and Clairday. Pizza Inn, a
franchisor of pizza restaurants, contracted with Clairday to
give Clairday the right to promote and develop Pizza Inn
restaurants within a designated geographic territory. The
agreements contained a renewal option, which Clairday
exercised, but he submitted his request to renew two months
late. Pizza Inn brought this declaratory judgment suit in
state court and sought a declaration that the agreements
expired and Clairday had no lawful right to renew. Clairday
removed this suit to federal court and asserted counterclaims
for violations of the Arkansas Franchise Practices Act (AFPA)
and claims for declaratory judgment and breach of contract.
The Court granted Pizza Inn's motion for summary judgment
on Clairday's claims under the AFPA. The parties
proceeded to trial on the remaining claims. The jury found
that Pizza Inn failed to comply with the agreements and
awarded Clairday $250, 000 in damages.
Inn filed a motion for judgment as a matter of law, but the
Court denied its motion. Pizza Inn filed a renewed motion for
judgment as a matter of law, and Clairday requests entry of
his bill of costs and an award for attorneys' fees.
The Court Denies Pizza Inn's Renewed Motion for Judgment
as a Matter of Law
the Court denies Pizza Inn's renewed motion for judgment
as a matter of law. After considering all of the evidence and
drawing all reasonable inferences in favor of the nonmoving
party, the Court finds that there is sufficient evidence to
support the jury verdict. Finding no basis for granting Pizza
Inn's alternative requested relief, the Court declines to
modify the judgment or provide relief from judgment.
The Court Sustains Pizza Inn's Objection and Reduces the
Court Costs Taxed Against Pizza Inn
Court sustains Pizza Inn's objection and taxes $2, 558.78
in court costs against Pizza Inn. Federal Rule of Civil
Procedure 54(d)(1) allows the prevailing party to collect
costs, unless restricted by statute, rule, or otherwise.
Fed.R.Civ.P. 54(d)(1). 28 U.S.C. § 1920 defines
“costs” as used in Rule 54(d)(1). See
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.
437, 441-42 (1987). Section 1920 outlines the permitted
statutory costs that can be taxed against a party, including:
(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.
28 U.S.C. § 1920. Witnesses are also allowed travel
expenses and an attendance fee of $40 per day for each day of
travel and attendance. Id. § 1821(b), (c)(1).
The attendance fee and travel reimbursement apply to expert
witnesses, unless the expert is court appointed. Crawford
Fitting Co., 482 U.S. at 442. Courts cannot tax more
than $40 per day for expert witnesses but can tax costs
exceeding $40 per day for court-appointed experts.
prevailing party has the burden to establish the necessity of
the costs. See Fogleman v. ARAMCO (Arabian Am. Oil
Co.), 920 F.2d 278, 286 (5th Cir. 1991). Nonetheless, if
the nonprevailing party does not object to a specific cost or
fee, the Court will presume the cost is reasonable. See,
e.g., Manderson v. Chet Morrison Contractors,
Inc., 666 F.3d 373, 384 (5th Cir. 2012) (“[T]here
is a strong presumption under Rule 54(d)(1) that the
prevailing party will be awarded costs.”);
Interstate Contracting Corp. v. City of Dallas, 2002
WL 236676, at *2 (N.D. Tex. Jan. 31, 2002) (“Plaintiff,
as the prevailing party, is presumptively entitled to its
costs and Defendant, as the non-prevailing party, bears the
burden of overcoming the presumption.”).
the Court sustains Pizza Inn's objection and taxes a
total of $2, 558.78 in court costs against Pizza Inn.
Clairday requests reimbursement for his court filing fee, two
deposition transcripts, and expert witness fees. Req. Entry
Bill Costs, Ex. A 1 . Pizza Inn does not object to the
costs for his filing fee or deposition transcripts.
See Pl.'s Opposition Def.'s Req. Entry Bill
Costs 1-3 . Accordingly, the Court finds that
Clairday's filing fee and deposition transcript costs,
totaling $1, 562.00, are reasonable and within the
statutorily permitted costs.
Pizza Inn objects to Clairday's requests for expert fees
for Matt Knight. Clairday requests $3, 951.78 in expert
witness labor and travel expenses. Req. Entry Bill Costs, Ex.
A 1 . But Pizza Inn argues that the expert labor fees are
unrecoverable. Pl.'s Opposition Def.'s Req. Entry
Bill Costs 1-3 . The Court agrees with Pizza Inn and
reduces the recoverable fees for Matt Knight. Matt Knight was
not a court-appointed expert, so the only recoverable costs
include travel expenses and an attendance fee of $40 per day.
The Court finds the costs of Knight's travel reasonable
and taxes $876.78 in travel expenses against Pizza Inn.
Additionally, the Court reduces the witness labor costs and