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Segner v. Ruthven Oil & Gas, LLC

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

January 16, 2020

MILO H. SEGNER, JR., as Liquidating Trustee of the PR Liquidating Trust, Plaintiff,
v.
RUTHVEN OIL & GAS, LLC, WENDELL HOLLAND, THE WENDELL AND KARI HOLLAND TRUST, and CIANNA RESOURCES, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JANE J. BOYLE, UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Cianna Resources, Inc.'s Motion for Ruling on Defendant's Bill of Costs. Doc. 352, Def.'s Mot. On July 13, 2018, Cianna submitted a Bill of Costs to the Court, requesting $95, 717.36 in fees incurred during this action. Doc. 330, Bill of Costs. This figure is derived from fees for transcripts, copies, printing, and witnesses. On July 16, 2018, Plaintiff/Trustee Milo H. Segner[1] filed a Response and Objections to Defendant's Bill of Costs. Doc. 331, Pl.'s Resp. & Objs. The Trustee objects both to the Bill of Costs as a whole and to the specific line items Cianna requests. Id. at 4-8. The Court delayed consideration of Cianna's Bill of Costs until the Fifth Circuit resolved the Trustee's appeal. Doc. 349, Elec. Order. On October 10, 2019, the Fifth Circuit issued its mandate affirming the judgment of this Court. Doc. 351, J. of Fifth Circuit. On October 24, 2019, Cianna filed its motion requesting that the Court rule on its Bill of Costs as the Trustee's appeal had been resolved. Doc. 352, Cianna's Mot. for Ruling. The Trustee filed a response opposing Cianna's request on the basis that the Court should again delay consideration, this time until the United States Supreme Court resolves his petition for certiorari. See Doc. 353, Pl.'s Resp. For the following reasons, the Court GRANTS Cianna's Motion for a Ruling on its Bill of Costs (Doc. 352), and ORDERS the Trustee to pay $60, 131.79 to Defendant Cianna by Friday, January 31, 2020.

         I.

         First, the Court must determine whether it is again appropriate to delay consideration of Cianna's Bill of Costs. The Trustee asserts that delay is appropriate until the United States Supreme Court resolves its petition for writ of certiorari. Doc. 353, Pl.'s Resp., 1. The Trustee filed his cert petition on December 11, 2019. Petition for Writ of Certiorari, Milo H. Segner, Jr. v. Cianna Res. Inc., No. 19-759 (U.S. Dec. 11, 2019). Cianna replies that delay is inappropriate based on the factors courts consider when determining whether to stay a judgment pending appeal. Doc. 354, Def.'s Reply, 2-4. Cianna argues in the alternative that if the Court delays consideration of its Bill of Costs, it should require the Trustee to post a bond or other security sufficient to satisfy Cianna's taxable costs and costs to respond to the cert petition. Id. at 4-6.

         The Court rejects the Trustee's request to delay consideration of Cianna's Bill of Costs pending decision on his cert petition. To start, as Cianna points out, “[c]ourts are not required to stay taxing costs pending the outcome of an appeal.” Galaviz v. Post-Newsweek Stations, 2010 WL 1904334, at *1 (W.D. Tex. May 11, 2010) (citing Baldauf v. Davidson, 2008 WL 711703, at *1 (S.D. Ind. Mar. 14, 2008); Chamberlain Grp., Inc. v. Interlogix, Inc., 2002 WL 31176068, at *1 (N.D. Ill. Sept. 30, 2002)). Some courts determine whether it is appropriate to delay consideration by applying the factors used to determine whether a judgment should be stayed pending appeal. See Javery v. Lockheed Martin Corp., 2019 WL 181342, at *1 (E.D. La. Jan. 11, 2019); Payan v. United Parcel Serv., 2017 WL 4844651, at *2 (D. Utah Sept. 1, 2017); Tolan v. Cotton, 2012 WL 12893484 (S.D. Tex. July 12, 2012). In other words, these courts consider “the likelihood of the movant's success on appeal, whether the movant will be irreparably harmed, whether the nonmoving party will be injured, and any public interest.” Javery, 2019 WL 181342, at *1 (citations omitted).

         The Trustee does not argue that any of these factors weigh in favor of staying consideration of Cianna's Bill of Costs. See Doc. 353, Pl.'s Resp., 1. In fact, the Trustee provides no reason for why the Court should delay consideration aside from the fact that he filed a cert petition. See Id. Cianna argues, and the Court agrees, that all of these factors weigh against further delay in deciding the Bill of Costs. Doc. 354, Def.'s Reply, 3-4. First, the Court finds that the Trustee is unlikely to succeed on his petition-as the Supreme Court's rules note, “[r]eview on a writ of certiorari is not a matter of right, but of judicial discretion” and “will be granted only for compelling reasons.” Sup. Ct. R. 10. And “[s]tatistical evidence shows that in any given year, the Supreme Court will grant certiorari from one percent to five percent of the petitions filed.” Ledford v. Sellers, 2018 WL 272664, at *1 (N.D.Ga. Jan. 3, 2018) (collecting sources).[2] Further, to succeed on appeal, the Trustee would also need to obtain a Supreme Court ruling in his favor. While all this may be possible, the Trustee has not shown, and the Court does not find, that it is likely to occur based on the circumstances of this particular case.

         Nor can the Trustee show that he will be irreparably harmed absent a stay of the cost award. As other courts have noted, “[w]hen a district court judgment is reversed or substantially modified on appeal, any costs awarded to the previously prevailing party are automatically vacated.” Galaviz, 2010 WL 1904334, at *1 (quoting Furman v. Cirrito, 782 F.2d 353, 355 (2d Cir. 1986)). Because the Trustee has not shown why reimbursement after a successful appeal would irreparably harm him, this factor too weighs against a stay. See Javery, 2019 WL 181342, at *1 (denying stay because the plaintiffs did “not address how paying the award now and obtaining reimbursement in the event of a successful appeal would be injurious to them”). Finally, Cianna argues in its motion that it could be harmed if the trust resources are depleted during pendency of the Trustee's petition. Doc. 354, Def.'s Reply, 5-6.

         To summarize, the Court finds that the Trustee has not provided sufficient reasons to further delay consideration of Cianna's Bill of Costs, and that the factors that other district courts look to when deciding this issue weigh against a stay. The Court thus proceeds to the Bill of Costs.

         II.

         Unless a statute, rule, or 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, a judge or clerk of any court of the United States may tax as costs “fees for printed or electronically recorded transcripts necessarily obtained for use in the case” and “fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” 28 U.S.C. § 1920(2), (4) (2012). The Trustee makes a number of objections to Cianna's Bill of Costs, and the Court addresses each in turn.

         A. Objections to Deposition Costs

         The Trustee objects to Cianna's request for $4, 063.26 in fees related to videotaped depositions. Doc. 331, Pl.'s Resp. & Objs., 4-5. This number is broken down into two amounts: (1) $2, 994.50 in video charges for depositions of the Trustee's experts; and (2) $1, 068.76 in video charges for the depositions of Mr. Kyle Shutt and Cianna's retained experts. Id. at 5. In reply, Cianna has withdrawn the request for $1, 068.76. Doc. 348, Def.'s Reply, 2. But as for the $2, 994.50, Cianna asks that the Court overrule this objection because, it argues, the costs related to these depositions were necessarily incurred for use in the case. Id. at 3.

         Section 1920(2) “indisputably authorizes recovery of costs for video recordings of depositions.” Allstate Ins. Co. v. Plambeck, 66 F.Supp.3d 782, 786 (N.D. Tex. 2014) (citing, inter alia, S&D Trading Academy, LLC v. AAFIS, Inc., 336 Fed.Appx. 443, 450-51 (5th Cir. 2009) (per curiam)). However, the video depositions must have been “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). This “does not require the actual use at trial . . . .” Allstate Ins. Co., 66 F.Supp.3d at 790. Instead, recovery is authorized where the video deposition is “reasonably . . . expected to be used during trial or for trial preparation, rather than for the mere convenience of counsel or merely for discovery.” Id. (citing, inter alia, Fogleman v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991)).

         The Trustee seems to argue that costs for these video depositions of his experts are unrecoverable because these experts were available to appear at trial. See Doc. 331, Pl.'s Resp. & Objs., 5. The Trustee cites one case-Sheikh-Abukar v. Fiserv Solutions, Inc., 2011 WL 5149654, at *1 (S.D. Tex. Oct. 26, 2011)-as support for this objection. Doc. 331, Pl.'s Resp. & Objs., 2, 5. The court in Sheikh-Abukar recognized that costs for videotaped depositions are recoverable under § 1920(2), especially in long, complex cases where witness credibility is “sharply disputed.” Sheikh-Abukar, 2011 WL 5149654, at *1 (internal quotation marks omitted) (citing Baisden v. I'mReady Prods., Inc., 793 F.Supp.2d 970, 978 (S.D. Tex. 2011)). But the court sustained an objection to the defendant's request for costs of the plaintiff's videotaped depositions ...


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