MEMORANDUM OPINION
Before the Court are Defendant’s Motion for Attorneys’ Fees and Expert Fees (Dkt. No. 188) and Defendant’s Bill of Costs (Dkt. No. 190). Upon review of the motions and the briefs in support and in opposition, it is hereby ORDERED that Defendant’s Motion for Attorneys’ Fees is
Background
Plaintiff Michael Ford filed suit on December 19, 2008 against defendants Zaleo Realty, Inc., MDV Maintenance, Inc., Horizon House Condominium Unit Owners Association, James Mansfield, David Faison, Eric Mucklow, and Virginia O. Smith. On April 21, 2009 Plaintiff filed an amended complaint. On July 8, 2009, in an agreed order of dismissal, all defendants except for James Mansfield were dismissed from the case. On November 30, 2009 Defendant filed its motion for summary judgment. The Court granted summary judgment in favor of Defendant Mansfield on February 1, 2010,
Attorneys’ Fees
Attorneys’ fees and expert witness fees may be awarded to a defendant in a Section 1981 race discrimination action pursuant to 42 U.S.C. § 1988, when the case is “frivolous, unreasonable, or without foundation.”
See Christiansburg Garment Co. v. EEOC,
The Court finds, in this case, that awarding attorneys’ fees is not appropriate. At the time Plaintiff filed his Complaint, he did not know all of the facts. What he did know was that there had been racially discriminatory statements made toward him, death threats made against him, and that Defendant Mansfield was seemingly involved.
1
Ultimately all of the other defendants settled, and after discovery was undertaken, it became clear that Plaintiff did not have a viable case against Mansfield. Hindsight, however, is twenty-twenty, and just because the case was dismissed on summary judgment does not mean that the case was “frivolous, unreasonable, or without foundation.” As the Supreme Court has warned, “it is important that a district court resist the understandable temptation to engage in post doc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable and without foundation.”
Christiansburg,
Bill of Costs
Following entry of the order granting summary judgment, Defendant Mansfield
(1) Fees for service of summons and subpoena $ 5,285.00
(2) Fees for printed or electronically recorded transcripts $16,866.25
(3) Fees for exemplification and copies $ 2,227.33
(4) Other costs (invoice from Plaintiffs expert witnesses) $ 3,537.99
TOTAL: $27,916.57
Under Fed.R.Civ.P. 54(d), “costs ... should be allowed to the prevailing party.” The court has wide latitude to award costs, so long as the costs are enumerated in the general taxation-of-costs statute, 28 U.S.C. § 1920.
2
See Crawford Fitting Co. v. J.T. Gibbons, Inc.,
Since summary judgment was granted in favor of Defendant, there is no question that Defendant is the prevailing party in this suit. Plaintiff, however, objects to $16,949.82 worth of fees requested by Defendant and argues that the Court should strike Defendant’s bill of costs in its entirety. Specifically, Plaintiff objects to private process server fees, expedited deposition transcripts, in-house and other undocumented photocopying expenses, postage and courier expenses, and expert witness fees. Defendant has withdrawn his request for postage and shipping expenses which totaled $137.99, meaning Mansfield’s request for $27,916.57 in the amended bill of costs is reduced to $27,778.58.
Fees for Service of Summons and Subpoenas
Mansfield included $5,285.00 in his amended bill of costs for service of subpoenas on witnesses for depositions and witnesses scheduled to appear at trial. Plaintiff objects to the award of these fees. Receipts attached to the bill of costs indicate that the subpoenas were delivered by a private process server. Cases in this district are split on the issue of whether fees for private process servers should be taxed as costs.
See Cofield v. Crumpler,
Expedited Deposition Transcripts
Mansfield has requested $16,866.25 for transcript expenses incurred during the course of litigation. Plaintiff objects to $1,943.20 of these costs which were for expedited transcripts arguing that fees for expedited transcripts are generally not taxable. Courts in the Fourth Circuit have held that costs for expedited production are allowable when the recovering party can show necessity for the expedited service.
See e.g. Ferris v. AAF-McQuay, Inc.,
In this case, the Court finds that Defendant has shown the requisite necessity. Mansfield filed his motion for summary judgment on November 30, 2009. The depositions of Andrea Ford, Kimberly Ford, and Susan Morris were all taken within two weeks of when Defendant filed his motion for summary judgment. The depositions of Vondell Carter, Barnard DiMuro, and William Ford were taken a couple of days after the motion for summary judgment, and within two weeks of when the hearing was originally scheduled. 3 Defendant explained that it was necessary to receive the deposition transcript of Dr. Thomas Goldman in an expedited fashion so that Dr. Liza Gold would have it on November 11, 2009 when she examined Plaintiff. Defendant also explained that the deposition of Greg Weatherman was needed in an expedited fashion because it was unclear when the second deposition of Mr. Weatherman would occur, and it would be necessary to have the transcript of the first deposition at the time of the second. While Defendant has not explicitly listed reasons for needing expedited transcripts of the depositions for Bobbie Fisher and Virginia Smith, the Court does not find that it was unreasonable given that those depositions occurred within approximately a month of when Defendant ultimately filed his motion for summary judgment. Defendant has also noted that he planned on filing the motion on November 20, 2009, but because the Court granted the parties’ joint motion to extend discovery did not ultimately file the motion until November 30, 2009.
Plaintiff further argues that Defendant improperly seeks $4,362.65 for deposition transcripts which were not cited in either the summary judgment motion or the reply brief. The law in this area is clear. In order for the deposition to be necessary, it needs only to be “relevant and material” for the preparation in the litigation.
Cofield,
Copying Costs
Mansfield seeks $2,227.33 for copying costs incurred by him during litigation. Copy fees are a reimbursable cost under 28 U.S.C. § 1920(4) when they are “necessarily obtained for use in the case.” Courts, however, have limited this, holding that “photocopy charges are properly taxable only to the extent that the copies were used as court exhibits or were furnished to the court or opposing counsel.”
Bd. of Dir. v. Anden Group,
Defendant has failed to document $2,174.18 worth of copying costs which he is requesting. Only $53.15 of the copying costs appears to be for materials obtained by third party custodians (those charges for copying Plaintiffs medical records and Plaintiffs transcripts). It is unclear what else was copied to account for the additional costs. While Defendant has submitted all of the receipts, these receipts do not specify what was copied. For example, Defendant has submitted a receipt for $951.72 for “Heavy Litigation Photocopying,” without any further explanation. Because Defendant has failed to demonstrate the reasons for $2,174.18 of copying charges, those charges are not taxable.
Expert Witness Fees
Defendant seeks an award of $3,400 for fees paid to Plaintiffs two expert witnesses. Under Section 1920(3), the costs of witnesses may be taxed as costs. However, the courts have consistently held that this only covers the statutory witness fee under 28 U.S.C. § 1821 and does not include the hourly fee charged by expert witnesses.
Crawford Fitting,
Defendant argues, in the alternative, that if the fees are not taxable as an element of the bill of costs, he should be awarded the $3,400 under 42 U.S.C. § 1988. As stated above, the Court does not find that the action by Plaintiff was “unreasonable, frivolous, or without foundation” and thus will not award attorneys’ fees to Defendant, including expert fees,
Christiansburg,
434 U.S at 421,
Conclusion
In sum, the Court finds that Defendant is unable to recover for the following costs: 55,285.00 for private process server fees; $2,174.18 for undocumented photocopying
Notes
. On December 17, 2005 an anonymous letter was sent to residents of Horizon House accusing Plaintiff of having a violent history and abusive character. On December 24, 2005, Plaintiff received a letter with an anonymous death threat against him and his family. The letter stated, ”U R DED [sic] NIGGER UR FAMILY [sic] TOO.” On January 17, 2006, Defendant distributed a letter to the Board of Horizon House which made allegedly false accusations against Plaintiff regarding pending charges against him as well as the circumstances surrounding Plaintiff’s previous employment. Residents of Horizon House made statements to Plaintiff such as, “[w]e don't want your kind here!” and "You need to get some education”
. 28 U.S.C. § 1920 specifies the following as costs that the a court may tax: (1) Fees of the clerk and marshal; (2) Fees of the court reporter for all of any part of the stenographic transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
. The hearing had to be rescheduled’because of a snowstorm which closed the courthouse on December 18, 2009.