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.
