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McLelland v. Ridge Tool Co.

United States District Court, W.D. Arkansas, Texarkana Division

October 4, 2018



          Susan O. Hickey, United States District Judge.

         Before 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.

         I. DISCUSSION

         As the prevailing party in this action, [1] 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 deposition subpoena.

         Courts 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.”).

         The 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.

         A. Economic Disparity Between Parties

         Plaintiff 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 likely continue.

         Defendant 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.

         Courts 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).

         Upon 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.

         B. Deposition Costs

         Defendant 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 Richards.

         Courts 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 ...

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