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Veliz v. City of Minneapolis: US District Court : CIVIL PROCEDURE - five-hour deposition of plaintiff reasonable; costs awarded; fee award back-door to cost award not applicable

Giovanni Veliz,
Civ. No. 07-2376 (RHK/JJK)
City of Minneapolis,
This matter is before the Court on Plaintiffs Objections (Doc. No. 142) to
Defendants Bill of Costs (Doc. No. 138). For the reasons set forth below, Plaintiffs
Objections will be sustained in part and overruled in part.
Plaintiff, a police officer employed by the City of Minneapolis (the City),
alleged in this action that he was denied a transfer to an elite police unit for
discriminatory and retaliatory reasons. He asserted claims under Title VII of the Civil
Rights Act of 1964 (Title VII), 42 U.S.C. 2000e et seq.; 42 U.S.C. 1981; and state
and City law. After discovery, the City moved for summary judgment, arguing that
Plaintiff had failed to adduce sufficient evidence to support his claims. By Order dated
July 2, 2008, the Court denied the Citys Motion, finding that there existed a genuine
issue whether the Citys proffered reason for denying the transfer was a pretext for
1 Under Federal Rule of Civil Procedure 54(d)(1), the Clerk of the Court usually first
taxes costs, after which a party may appeal the Clerks action to the presiding judicial officer.
See 10 Wright, Miller & Kane, Federal Practice & Procedure: Civ. 3rd 2679, at 488 (3rd ed.
1998) (The function of the court in the process of taxing costs is merely to review the
determination of the clerk.). But the Court discerns no principled reason to wait for the Clerk to
tax costs here before the undersigned acts on Plaintiffs Objections. See, e.g., Nelson v. Darragh
Co., 120 F.R.D. 517, 518 (W.D. Ark. 1988) (Morris Sheppard Arnold, J.) (collecting cases
recognizing that district court may act on bill of costs before court clerk).
The case was then tried to a jury over a four-day period in October 2008. On
October 22, 2008, the jury returned a special verdict in the Citys favor on Plaintiffs
claims. The Court adopted the jurys verdict as its own and entered judgment dismissing
the case on October 23, 2008. Plaintiff did not file an appeal.
On February 3, 2009, the City filed a Bill of Costs (Doc. No. 138), seeking to tax
,594.31 in costs incurred in connection with this case. In particular, the City seeks
(1) ,465.40 for transcripts of the depositions of seven witnesses, including Plaintiff, and
(2) ,128.91 for travel and lodging costs incurred in connection with the deposition of
William McManus in San Antonio, Texas. Plaintiff raises several objections to the Bill of
Costs, each of which is discussed below.1
1. Timeliness. Plaintiff argues that the entire Bill of Costs should be rejected
as untimely. (Objections at 2-3.) But Federal Rule of Civil Procedure 54(d)(1), which
governs the taxation of costs, does not contain any deadline for filing a bill of costs.
Accordingly, consistent with Rule 1s directive that the Federal Rules be interpreted to
secure the just and speedy determination of every action, courts have concluded that a bill
of costs must only be filed within a reasonable period of time. See, e.g., Ratcliff v. ABC
2 Generally, the fee for a deposition transcript necessarily obtained for use in a case is a
taxable cost. Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 762 (8th Cir. 2006). Plaintiff
does not argue that his deposition was unnecessarily taken in this case.
3 Plaintiff does not object to the remaining deposition-transcript costs. Accordingly, the
City is entitled to recover the entire ,465.40 it seeks for such costs. See 28 U.S.C. 1920(2).
Television & Appliance Rental, Inc., No. 7:04CV00757, 2006 WL 229153, at *1 (W.D.
Va. Jan. 19, 2006); Nelson v. Darragh Co., 120 F.R.D. 517, 519 (W.D. Ark. 1988)
(Morris Sheppard Arnold, J.). The Citys delay here slightly more than two months,
from November 24, 2008 (the date the appeal period expired) to February 3, 2009 (the
date the bill of costs was filed) was not unreasonable. See Ratcliff, 2006 WL 229153,
at *1 (The court finds that ABCs two-month delay was not unreasonable and that
allowing ABC to recover costs under Rule 54 would not offend Rule 1.).
2. Plaintiffs deposition cost. Plaintiff next argues that the amount sought for
the transcript of his deposition ,302.90 is excessive, claiming that the City
unnecessarily stretch[ed] out his deposition over eight hours.2 But the record belies his
contention and indicates that his deposition was no more than five hours long. (See
Fundingsland Aff. (Doc. No. 145) Ex. 1.) Given the nature of the claims in this case, the
Court finds that the time spent on Plaintiffs deposition and the cost thereof are
reasonable. Moreover, Plaintiff was the only witness deposed by the City, undermining
his contention that it engage[d] in excessive litigation to incur expenses knowing [they]
may overburden him. (Objections at 2.)3
3. Travel expenses. Finally, Plaintiff argues that ,128.91 in travel and
lodging costs incurred in connection with the McManus deposition are not taxable. This
objection is well-founded.
Generally, the costs that may be awarded under Rule 54 are limited to those
provided in 28 U.S.C. 1920. See, e.g., Smith v. Tenet Healthsystem SL, Inc., 436 F.3d
879, 889 (8th Cir. 2006). Because attorney travel and lodging costs are absent from
Section 1920, such expenses typically are not recoverable as costs. Harkins v.
Riverboat Servs., Inc., 286 F. Supp. 2d 976, 983 (N.D. Ill. 2003); accord, e.g., J.T.
Gibbons, Inc. v. Crawford Fitting Co., 760 F.2d 613, 616 (5th Cir. 1985) (As a general
rule attorneys fees and travel expenses incurred in connection with deposition taking[]
are not usually taxable as costs.); Kemberling v. MetLife Life & Annuity Co. of Conn.,
No. 08-cv-1741, 2008 WL 2609402, at *1 & n.1 (M.D. Fla. June 30, 2008).
Yet, costs beyond those prescribed in Section 1920 may be awarded, in the
discretion of the district court, where they enjoy some other statutory authorization. See,
e.g., Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024, 1036 (8th Cir. 2008); Smith, 436
F.3d at 889. The City points to the attorney-fee provision in Title VII, 42 U.S.C.
2000e-5(k), for such authorization here. Section 2000e-5(k) provides, in pertinent part,
that the prevailing party in a Title VII action may be awarded a reasonable attorneys
fee, and the Eighth Circuit has held that the term reasonable attorneys fee includes
reasonable out-of-pocket expenses incurred by [an] attorney which are normally charged
to a fee paying client. Sturgill, 512 F.3d at 1036. In other words, the attorney-fee
provision in Title VII provides a back door through which a prevailing party may recover
costs beyond those enumerated in Section 1920. Nevertheless, the Court concludes that
an award of the travel and lodging costs sought here would be inappropriate for two
First, a necessary prerequisite to the recovery of such costs is an award of
attorneys fees. See id. (costs beyond those in Section 1920 may be taxed under Section
2000e-5(k) only as part of a reasonable attorneys fee). But no fee award has been
made in this case indeed, the City has not sought such an award, and the time for doing
so under the Courts Local Rules has long passed. Nor would the Court have awarded
fees to the City if such a request had been timely made. Absent some other basis such as
Federal Rule of Civil Procedure 11 or 28 U.S.C. 1927 (neither of which the City relies
on here), fees may be awarded to a prevailing Title VII defendant only when the
plaintiffs claim was frivolous, unreasonable, or groundless, or [where] the plaintiff
continued to litigate after it clearly became so. Christiansburg Garment Co. v. EEOC,
434 U.S. 412, 422 (1978); accord EEOC v. Trans States Airlines, Inc., 462 F.3d 987, 996
(8th Cir. 2006). In the Courts view, the claims here were neither frivolous,
unreasonable, nor groundless, because Plaintiff had colorable argument[s] in support
thereof indeed, Plaintiff proffered sufficient evidence to survive the Citys summary4
Notably, each case cited by the City, including the Eighth Circuits decision in Sturgill,
permitted the recovery of costs beyond those in Section 1920 only after attorneys fees had
already been awarded.
judgment motion. Id. Because no fee award is proper, Plaintiff cannot recover expenses
beyond those in Section 1920 as part of a reasonable attorneys fee.4
Second, even if costs outside those enumerated in Section 1920 were recoverable,
the Court would decline to award them here. While Section 2000e-5(k) permits the
taxation of such costs, that statute does not constrain the Courts broad discretion in
deciding whether an award of costs is warranted under the circumstances. See, e.g., Kline
v. City of Kansas City, Mo. Fire Dept, 245 F.3d 707, 709 (8th Cir. 2001) (noting that
cost awards under Section 2000e-5(k) remain discretionary with the district court); Boyd
v. Ozark Air Lines, Inc., 568 F.2d 50, 55 (8th Cir. 1977) (same). Given the evidentiary
basis for Plaintiffs claims and the potential chilling effect an award of travel and lodging
costs might have on future plaintiffs, the Court believes that it would be inappropriate to
tax such costs here. Further, there is no evidence that Plaintiff litigated this case in bad
faith or in a vexatious or obstreperous manner. And, the Court notes that Plaintiff is an
individual of modest means, while the City is the largest municipality in the state of
Minnesota. [W]here the antagonists are very unevenly matched in size, resources, and
stability, it would be unfortunate to use the possible taxation of costs as a sword of
Damocles. Boas Box Co. v. Proper Folding Box Corp., 55 F.R.D. 79, 81 (E.D.N.Y.
1971). For these reasons, the Court will not tax the ,128.91 in travel and lodging costs
sought by the City.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Plaintiffs Objections (Doc. No. 142) to Defendants Bill of Costs are
the Clerk of the Court shall tax costs against Plaintiff in the amount of ,465.40.
Dated: February 25, 2009 s/Richard H. Kyle
United States District Judge


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Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



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