United States District Court, N.D. Texas, Dallas Division
MILO H. SEGNER, JR., as Liquidating Trustee of the PR Liquidating Trust, Plaintiff,
RUTHVEN OIL & GAS, LLC, WENDELL HOLLAND, THE WENDELL AND KARI HOLLAND TRUST, and CIANNA RESOURCES, INC., et al., Defendants.
MEMORANDUM OPINION AND ORDER
J. BOYLE, UNITED STATES DISTRICT JUDGE
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 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.
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.
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
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). 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
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
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.
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.
Objections to Deposition Costs
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.
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)).
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