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Wednesday, July 21, 2021

Jacquety v Baptista, 2021 WL 3034045 (S.D. New York, 2021)[France] [[Petition denied][Costs]

In Jacquety v Baptista, 2021 WL 3034045 (S.D. New York, 2021) the Court found in favor of Respondents and denied the petition for return. Respondent Tena Baptista (“Respondent”) moved for an award of costs pursuant to 28 U.S.C. §§ 1920 and 1923, Rule 54 of the Federal Rules Of Civil Procedure, and Southern District Of New York Local Civil Rule 54.1.


          The Court observed that the items that may be included in a cost award pursuant to Rule 54 are defined by statute, specifically 28 U.S.C. § 1920 (“Section 1920”). Section 1920 lists six categories of recoverable costs: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under [28 U.S.C. § 1923]; and (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under [28 U.S.C. § 1828].  


A court does not have discretion to tax costs beyond what is set forth in Section 1920. Crawford Fitting, 482 U.S. at 441-42, 107 S. Ct. at 2497 (court is not authorized “to tax whatever costs may seem appropriate”). The party seeking costs thus “bears the burden of establishing that each expense it seeks to recover ‘falls within an allowable category of taxable costs. When interpreting and applying the costs statute, “the Supreme Court has explained that Section 1920 should be read as limiting taxable costs ‘to relatively minor, incidental expenses,’ such that ‘the assessment of costs most often is merely a clerical matter that can be done by the court clerk.’ ” Endo Pharmaceuticals, 331 F.R.D. at 580 (quoting Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 573, 132 S. Ct. 1997, 2006 (2012)). Although the Court does not have discretion to award costs falling outside the statute’s enumerated categories, the Court may exercise its discretion to not award costs that fall within those categories. See Taniguchi, 566 U.S. at 572-73, 132 S. Ct. at 2006.


Trial Transcripts. Respondent initially sought $47,858.88 for costs of trial transcripts but, after Respondent’s objection, reduced the demand to $42,333.84 by removing costs attributable to “minuscripts” and same-day delivery of transcripts.  Fairness dictated that Petitioner pay for the costs only of (1) any real-time feeds provided to Petitioner’s counsel, (2) no more than that same number with respect to feeds provided to Respondent’s counsel, and (3) the feed provided to the Court. The cost of any additional feeds should be borne by Respondent.


Printing, Copying, and Exemplification. Respondent initially claimed $44,455.49 for printing and copying, including for preparing exhibit binders provided to witnesses, opposing counsel, and the Court. Of that amount, $36,352.75 was allocated to printing and copying, and $8,102.74 to costs associated with exemplification at trial. Petitioner challenged the extent of printing and copying as excessive. The Court agreed with Petitioner that Respondent had not sufficiently delineated what costs are attributed to exemplification as distinct from those that fell under other printing or copies of materials “necessarily obtained” for use in the case. See 28 U.S.C. § 1920(3), (4). The Court also agreed that the extent of copying by Respondent exceeds what may be recovered. Pursuant to Local Rule 54.1(c)(5), “[t]he cost of copies used for the convenience of counsel or the Court are not taxable,” and Respondent had not identified which copying costs were necessary and not merely for the convenience of counsel or the court. Nonetheless, separate exhibit books were required for each witness. Taking all these considerations into account, the Court found that the total amount sought by Respondent for printing and exemplification should be reduced to the amount expended for copies of one set of the exhibit books provided to each witness for examination or cross-examination at trial and for one set of exhibits officially received into evidence.


Interpreters. Interpreters were employed for trial because the parties’ native language was French. Respondent testified primarily in French; Petitioner testified primarily in English but occasionally benefitted from use of the interpreter. One non-party, who testified for Petitioner, testified entirely in French. The interpreter also occasionally assisted during trial with correcting or confirming translations of documents. Although the Court did not appoint an interpreter, it found the interpreters’ services invaluable for trial. Respondent claimed $7,515.00 for fees paid to interpreters solely in connection with the testimony of Respondent herself. Petitioner contended that no interpreter fees were awardable based on this District’s local rules, because the costs sought were those associated with the testimony of Respondent who was a party, and not a non-party witness. Pursuant to Local Rule 54.1(c)(3), parties are not entitled to witness fees, and pursuant to Local Rule 54.1(c)(4), “the reasonable fee of a competent interpreter is taxable if the fee of the witness involved is taxable.” Local Rule 54.1(c)(3), (4)Costs for Respondent’s interpreter were denied.


Remote Trial Expenses. Trial of this case was conducted remotely as a result of the COVID-19 pandemic. Respondent sought $15,108.25 in costs paid to the service provider, TrialGraphix, which provided technology for and facilitated trial. Petitioner contended that Respondent is not entitled to any remote trial costs because they are not included in any category under 28 U.S.C. § 1920. Petitioner was correct. Even a generous reading of the cost categories identified in both of 28 U.S.C. § 1920 and Local Rule 54.1 does not include the costs of remote trial hosting. Costs of conducting the trial remotely were denied.

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