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Fulcher v. United States

United States District Court, W.D. Kentucky, Paducah Division

March 26, 2015



THOMAS B. RUSSELL, Senior District Judge.

This matter comes before the Court upon Plaintiff Regina Ann Fulcher's bill of costs. (Docket No. 35), to which the United States has objected (Docket No. 36). Fulcher has responded, (Docket No. 40), and the United States has replied, (Docket No. 42). Fully briefed, this matter stands ripe for adjudication. For the reasons that follow, the Court overrules the Government's objections and sustains Fulcher's bill of costs.

Factual Background

Following a one-day bench trial conducted pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., the Court entered judgment in favor of Fulcher. (Docket No. 33.) Fulcher timely submitted her bill of costs, claiming expenses totaling $3, 012.54. (Docket No. 35.) Upon the United States' objection, Fulcher conceded that certain fees associated with Dr. William Adams' deposition were improperly submitted. The parties' remaining disagreement concerns the transcript fees for the depositions of four Untied States Postal Service ("USPS") employees.

Legal Standard

Federal Rule of Civil Procedure 54(d) provides that a prevailing party is generally allowed to recover costs from the losing party, including the United States:

Except when express provision therefore is made either in statute of the United States or in these rules, costs other than attorney's fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law.

Fed. R. Civ. P. 54(d) (emphasis added). A presumption in favor of awarding costs to the prevailing party arises from Rule 54(d). Singleton v. Smith, 241 F.3d 534, 539 (6th Cir. 2001); Ford v. FedEx Supply Chain Servs., Inc., 2009 WL 1585849, at *1 (W.D. Tenn. June 3, 2009). The party objecting to the taxation must show why costs should not be awarded. BDT Prods., 405 F.3d at 420; Cooley v. Lincoln Elec. Co., 776 F.Supp.2d 511, 574 (N.D. Ohio 2011).

Federal statute addresses costs that may be awarded against the United States as a party. The statute provides, in relevant part:

Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in Section 1920 of this title ... may be awarded to the prevailing party in any civil action brought... against the United States.... A judgment for costs when taxed against the United States shall, in an amount established by statute, court rule, or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation.

28 U.S.C. § 2412(a)(1) (emphasis added). Accordingly, the Court may award only those costs enumerated in Section 1920.

Section 1920 permits the taxation of "fees for printed or electronically recorded transcripts necessarily obtained for use in the case." 28 U.S.C. § 1920(2). See also Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989) ("Ordinarily, the costs of taking and transcribing depositions reasonably necessary for the litigation are allowed to the prevailing party."). Necessity is determined as of the time of the deposition's taking; the fact that it was not actually used at trial is not determinative. Id. (citations omitted). However, "the cost of depositions that simply are investigative or preparatory in character, rather than for the presentation of the case, typically are not taxable." 10 Charles Alan Wright, Arthur Miller, & Mary Kay Kane, Federal Practice & Procedure § 2676 (3d ed.). Although no absolute rule governs which depositions are reasonably necessary, courts generally consider "whether the deponent was a party or a witness to disputed events, or whether the depositions were used by any of the parties in connection with a summary judgment motion." Youngberg v. McKeough, 2012 WL 6200650, at *2 (W.D. Mich. Dec. 12, 2012).


Fulcher now seeks to recover transcript fees associated with the depositions of USPS employees Gregory Widelski, Amanda Wallace, Kimberley Ellegood, and William Rogers. The Government that only two of the four-Widelski and Wallace-testified at trial, and that none of the deposition transcripts were filed with the Court or received as evidence. If these documents contained valuable information, the Government reasons, Fulcher would have included them with the materials that she filed in the record. That she failed to do so indicates that Fulcher herself believed that these depositions contained little of value. ...

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