United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey, United States District Judge.
the Court is Defendant Ridge Tool Company's Motion for
Costs. (ECF No. 56). Plaintiff Bubba McLelland has responded
to the motion. (ECF No. 59). Defendant has replied. (ECF No.
61). The Court finds the matter ripe for consideration.
prevailing party in this action,  Defendant asserts that it is
entitled to costs in the amount of $8, 299.65. Specifically,
Defendant seeks $6, 844.15 in deposition costs; $870.00 in
witness fees and expenses; $451.50 in costs relating to
copying paper documents; and $125.00 in fees for service of a
should award costs other than attorneys' fees to the
prevailing party in a lawsuit, unless an express provision
regarding costs is made by federal statue or court rule.
Fed.R.Civ.P. 54(d)(1). Generally, courts are limited to
shifting costs incurred by the prevailing party in six
statutorily defined categories, which include: fees paid to
the clerk of court, fees paid for necessarily obtained
transcripts, fees for printing and witnesses, fees for
exemplification and necessarily obtained photocopies, certain
docket fees, and expenses incurred for interpretation
services. 28 U.S.C. § 1920. Costs falling outside the
statutory framework must typically be borne by the party
incurring them. Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 442-43 (1987). “Rule 54(d)
presumes an award of costs to the prevailing party; however,
district courts have substantial discretion in awarding
costs.” Id.; see also Farmer v. Arabian
Am. Oil Co., 379 U.S. 227, 235 (1964) (“We do not
read [Rule 54(d)] as giving district judges unrestrained
discretion to tax costs to reimburse a winning litigant for
every expense he has seen fit to incur in the conduct of his
case. Items proposed by winning parties as costs should
always be given careful scrutiny.”).
Court must first address Plaintiff's argument that the
instant motion should be denied in its entirety due to the
economic disparity between the parties. If the Court finds
that argument unavailing, the Court will then separately
address Defendant's claimed costs related to depositions,
witness fees, photocopies, and service of process.
Economic Disparity Between Parties
argues that the Court should exercise its discretion to deny
all costs sought by Defendant. Specifically, Plaintiff argues
that a sizable economic disparity exists between himself, an
individual operating a one-man plumbing business in south
Arkansas, and Defendant, a wholly owned subsidiary of a
multinational corporation reporting a net income of $1.55
billion for fiscal year 2017. Plaintiff also states that he
has incurred medical expenses totaling $64, 877.43 because of
the injuries that were at issue in this case, and that he
paid $4, 000.00 to engage an expert witness. Plaintiff states
further that he has permanent damage to his left eye and, as
a result, has experienced a decline in income which will
argues in response that, although a court may consider a
losing party's inability to pay costs, the losing party
must provide sufficient evidence to establish that inability,
which Plaintiff has not done. Defendant also argues that
other courts have held that a disparity in wealth between the
parties is not, by itself, a sufficient ground to deny costs.
Defendant argues further the equities in this case favor
assessing costs against Plaintiff because he persisted in
pursuing this case despite having early notice of the
deficiencies in his claims.
may consider a losing party's limited financial resources
when determining whether to assess costs. See Cross v.
Gen. Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983).
“However, unsuccessful indigent litigants are not
automatically shielded from the imposition of costs against
them.” Lloyd v. Del-Jen, Inc., No.
4:06-cv-1546 GTE, 2007 WL 3408274, at *2 (E.D. Ark. Nov. 15,
2007) (internal quotation marks omitted). A losing party who
raises a general objection to an award of costs as
inequitable bears the burden of demonstrating such inequity.
Finan v. Good Earth Tools, Inc., No. 4:06-cv-878CAS,
2008 WL 1805639, at *9 (E.D. Mo. Apr. 21, 2008),
aff'd, 565 F.3d 1076 (8th Cir. 2009) (citing
Concord Boat Corp. v. Brunswick Corp., 309 F.3d 494,
498 (8th Cir. 2002)). Moreover, courts within the Eighth
Circuit have indicated a reluctance to deny costs altogether
simply based on an economic disparity between the parties.
See, e.g., Radmer v. OS Salesco, Inc., No.
CV 15-3177 ADM/BRT, 2017 WL 1157095, at *1 (D. Minn. Mar. 27,
2017) (holding that an economic disparity between parties
does not overcome the presumption that the prevailing party
is entitled to recover costs); Fields v. Shelter Mut.
Ins. Co., No. 4:05-cv-1924 GTE, 2007 WL 1702512, at *2
(E.D. Ark. June 11, 2007), as amended (June 12,
2007) (rejecting the losing party's argument that costs
should not be awarded to the prevailing party because of a
wide economic disparity between the parties); Wal-Mart
Stores, Inc. v. Crist, 123 F.R.D. 590, 595 (W.D. Ark.
1988) (opining that, by itself, an economic disparity between
parties is insufficient to deny costs but, when coupled with
other factors, could suffice).
consideration, the Court finds that Plaintiff has not
sufficiently demonstrated cause to outright deny
Defendant's request for costs. As the party asserting a
general “inequities” objection, Plaintiff bears
the burden of sufficiently demonstrating the inequities.
See Finan, 2008 WL 1805639, at *9. Although
Plaintiff offers evidence of his medical bills and his expert
witness fees, he does not offer evidence of his current
finances to show that he is unable to pay costs.
Additionally, he does not argue that he is indigent or unable
to pay costs; his arguments are only that he has incurred
medical bills and expenses throughout this suit and that his
income has decreased. Thus, the Court finds that Plaintiff
has not sufficiently demonstrated inequities warranting
outright denial of costs. The Court also finds that the
economic disparity between Plaintiff and Defendant is not an
independently sufficient reason to deny costs outright. The
Court will, however, keep Plaintiff's economic condition
in mind throughout the remainder of this Order.
seeks $6, 844.15 in costs related to four depositions that
were taken in this case. Specifically, Defendant seeks $2,
445.90 for taking the deposition of Plaintiff's expert,
Don Johnston. Plaintiff also seeks $4, 398.25 for taking the
depositions of Plaintiff, Mindy McLelland, and Shane
may tax as costs “[f]ees for printed or electronically
recorded transcripts necessarily obtained for use in the
case.” 28 U.S.C. § 1920(2). Transcription fees and
other costs related to depositions may be awarded if the
deposition was “necessarily obtained for use in a case
and was not purely investigative, ” even if the
deposition was not used at trial. Zotos v. Lindbergh Sch.
Dist., 121 F.3d 356, 363 (8th Cir. 1997) (citation
omitted); Bathke v. Casey's Gen. Stores, Inc.,
64 F.3d 340, 347 (8th Cir. 1995) (affirming an award of
deposition transcript costs when the district court relied on
the deposition transcripts in ruling on a summary judgment
motion). Moreover, a deposition transcript may be ...