United States District Court, W.D. Arkansas, Fayetteville Division
CHAD LOCHRIDGE; EVERETTE LOCHRIDGE; TWYLA LOCHRIDGE; PATRICIA LEACH; CARLIS SMITH; LYDIA SMITH; and REBECCA SMITH PLAINTIFFS
LINDSEY MANAGEMENT CO., INC. DEFENDANT
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS JUDGE.
before the Court are two separate Bills of Costs (Docs. 359
and 375). The first Bill of Costs (Doc. 359) was filed in
this Court by Defendant Lindsey Management Co., Inc.
(“Lindsey”) after it prevailed in a jury trial of
Plaintiffs' individual claims, made pursuant to the Fair
Labor Standards Act (“FLSA”). In this Bill of
Costs, Lindsey requested $22, 687.51, of which $21, 087.25
was attributable to costs for deposition transcripts, and $1,
600.26 was for costs of photocopies, scanning, and the
production of demonstrative boards used during the trial.
Judge Hendren denied this first Bill of Costs, and Lindsey
appealed that denial to the Eighth Circuit. The Court of
Appeals reviewed the matter and found error in denying costs
based solely on the district court's assumption that the
FLSA did not contemplate an employer recovering costs if it
prevailed at trial. The issue of costs was therefore remanded
“for consideration of whether costs should be awarded
under Rule 54(d)(1).” See Doc. 373-2, p. 5.
case was referred to the undersigned after remand, and
Lindsey filed a second Bill of Costs (Doc. 375), now
requesting reimbursement of the costs it incurred on appeal.
The second Bill of Costs requested $4, 323.20. Part of this
request, $812.85 for filing fees and copying costs, was
already approved by the Eighth Circuit. See Doc.
374. The rest of the request, $3, 510.35 for the cost of the
trial transcript that Lindsey submitted along with its appeal
brief, is a matter left to the discretion of this Court.
be explained in further detail below, Lindsey's first and
second Bills of Costs (Docs. 359 and 375) are each GRANTED IN
PART AND DENIED IN PART.
case was filed on March 15, 2012, asserting FLSA claims
individually and on behalf of a class of Lindsey employees.
The individual plaintiffs listed in the original complaint
were Chad Lochridge, Everette Lochridge, Twyla Lochridge, and
Heather Lochridge. (Doc. 1). An Amended and Substituted
Complaint was filed on March 28, 2012 (Doc. 4), adding one
more individual plaintiff, Lindsey employee Kevin Kornegay. A
Second Amended and Substituted Complaint was filed on June
28, 2012 (Doc. 16), and still more individual plaintiffs were
added to the lawsuit: Linda Danforth, Ray Danforth, Patricia
Leach, Debra McKee, Brian McKee,  Patsy Pickel, Steven Pickel,
Carlis Smith, Lydia Smith, and Rebecca Smith. On August 16,
2012, a Third Amended and Substituted Complaint was filed
(Doc. 36), which removed plaintiff Ray Danforth and added new
plaintiffs Judy Kathryn Hale, Sherry Jenkins, Pearson
Jenkins, and Ryan Agee.
February 4, 2013, the Court conditionally certified two
collective-action classes. See Doc. 61. However, on
December 10, 2013, the Court decertified one of the classes
on Lindsey's motion. See Doc. 313. This left for
trial the claims of one class of hourly workers, plus the
individual claims of the 18 named plaintiffs. Approximately a
month before the scheduled trial, a settlement was reached
between: (1) Lindsey and the class, and (2) Lindsey and 11 of
the 18 plaintiffs. The Court approved this settlement on
April 7, 2014. (Doc. 325). This left for trial only the
individual claims of the remaining seven plaintiffs: Chad
Lochridge, Everette Lochridge, Twyla Lochridge, Patricia
Leach, Carlis Smith, Lydia Smith, and Rebecca Smith.
September 26, 2014, following a five-day trial, the jury
returned a verdict in favor of Lindsey. Fourteen days later,
on October 10, 2014, Lindsey filed its first Bill of Costs
(Doc. 359) relating to trial expenses. This Bill of Costs
requested reimbursement of a grand total of $22, 687.51,
which included the following: (1) the costs of deposing seven
former plaintiffs who settled before trial and never
testified at trial; (2) the costs of deposing one former
plaintiff who settled before trial but also testified at
trial; (3) the costs of deposing all seven
individual plaintiffs who went to trial; (4) the costs of
deposing testifying witnesses Betsy Fox ($129.25 and $138.00,
for two depositions), Job Branch ($393.50), and Anne Martin
($189.00); (5) the costs of photocopies, scanning, tabs, the
creation of a CD, and a “project management” fee
($1, 030.96 total); and (6) the costs associated with the
assembly of demonstrative boards used at trial ($1, 263.55).
See Docs. 350, 359-1.
filed Objections (Doc. 360) to the first Bill of Costs,
arguing that the Court should exercise its discretion and
deny Lindsey's request in its entirety, since the trial
Plaintiffs' claims were brought in good faith, and it
would be manifestly unfair to burden them with costs after
they sued to vindicate their rights under a remedial statute.
Further, Plaintiffs argued that if the Court decided to tax
some of the costs, others, such as the costs of deposing
those plaintiffs who settled before trial and never
testified, should be disallowed. Lindsey filed a Response
(Doc. 361) to Plaintiffs' Objections, in which Lindsey
argued that Plaintiffs had failed to present any evidence of
special hardship, and thus had failed to defeat the
presumption that costs are recoverable to the prevailing
party under Rule 54(d). As for the deposition costs of the
former plaintiffs who settled before trial, Lindsey argued
that it was entitled to these costs because the former
plaintiffs worked with all those who went to trial, and the
former plaintiffs' depositions therefore cannot be said
to have had “no relevance or relation to this
case.” (Doc. 361, p. 5). Plaintiffs filed a Reply (Doc.
362) to Lindsey's Response, in which Plaintiffs
reiterated that the deposition testimony of the settling
plaintiffs was not reasonably necessary for the purpose of
proving the claims of the seven who went to trial.
considering the parties' arguments, Judge Hendren issued
an Order (Doc. 363) denying Lindsey's first Bill of Costs
in its entirety. He reasoned that the FLSA's broad,
remedial purpose, coupled with the fact that the statute does
not require prospective plaintiffs to be notified that they
may be responsible for the defendant's costs if they
lose, tends to indicate that a successful defendant in an
FLSA case should not recover its costs. In ruling against
Lindsey, the Court interpreted the FLSA's silence on the
The FLSA authorizes the recovery of costs by successful
plaintiffs, but does not mention such recovery by successful
defendants. A generous reading of the fee shifting provision
in favor of employees suggests that they should not face
taxation of costs if their suit is unsuccessful. The prospect
that costs might be taxed against an unsuccessful plaintiff
would undoubtedly dampen enthusiasm for seeking remedies
under the law, thus undermining the FLSA's remedial
Id. at p. 4. The Court did not reach the question of
whether costs would otherwise be taxable under the
traditional analysis of Rule 54(d)(1), which codifies a
rebuttable presumption that a prevailing party is entitled to
be recompensed for its costs. See Leonard v. Sw.
Bell Corp. Disability Income Plan, 408 F.3d 528, 533
(8th Cir. 2005) (citing Martin v. DaimlerChrysler
Corp., 251 F.3d 691, 696 (8th Cir. 2001)).
noted previously, Lindsey appealed the Court's decision
to deny costs, arguing that the FLSA's silence on the
issue of whether a defendant may recover costs does not
preclude the Court from making that award under Rule 54(d).
The Court of Appeals agreed with Lindsey, and now this
Court's task is to assess whether, in the Court's
discretion, costs should be awarded under Rule 54(d).
the case was remanded, Lindsey filed a second Bill of Costs
(Doc. 375), seeking to recover $812.85 in copying and filing
fees spent on the appeal, and $3, 510.35 for the cost of the
transcript of the five-day jury trial, which Lindsey
submitted along with its appellate briefing. The Eighth
Circuit granted the $812.85 request for costs. With respect
to the $3, 510.35 request directed to this Court for
reimbursement of the trial transcript, Plaintiffs filed an
Objection (Doc. 376), arguing that the transcript was not
needed on appeal, as the sole issue for the Eighth Circuit
was one of statutory interpretation. Lindsey thereafter filed
a Response (Doc. 378) to Plaintiffs' Objections, citing
to the case of Murphy v. L&J Press Corp., 577
F.2d 27, 29 (8th Cir. 1978), and maintaining that the cost of
the transcript here was properly undertaken, just as it was
in the Murphy case. However, a close reading of
Murphy shows that the parties there cited
extensively to the trial transcript in their appellate
briefing, and they agreed that it was necessary to prepare
the trial transcript to submit to the Eighth Circuit on
appeal. Id. The Eighth Circuit in Murphy
also concurred that ...