United States District Court, District of Columbia
UNITED STATES OF AMERICA, ex rel. ROBERT R. PURCELL, Plaintiffs,
MWI CORPORATION, Defendant.
Kessle, United States District Judge
MWI Corporation, has submitted a Bill of Costs amounting to
$80, 390.44 for various fees and expenses expended during the
litigation of this case. The Plaintiff, the United States,
opposes Defendant's request.
I. LEGAL STANDARD
prevailing party in this litigation, the Defendant is
entitled to a strong presumption that allowable costs should
be taxed to the non-prevailing party, which in this case is
Plaintiff, the United States of America. Svkesv.
Napolitano, 755 F.Supp. 2d. 118, 119-20 (D.D.C. 2010),
citing Fed.R.Civ.P. 54(d)(1), LCvr 54.1(a); Sunship, Inc.
v. Lehman, 655 F.2d 1311, 1312 (D.C. Cir. 1981).
"[The] Federal courts have placed on the unsuccessful
parties some burden of showing circumstances sufficient to
overcome the presumption favoring the prevailing party."
Id. However, "the burden is on the party
seeking costs ... to establish the amount of compensation
costs and expenses to which it is entitled." Allison
v. Bank One-Denver, 289 F.3d 1223, 1248 (10th Cir.
Government argues that the Defendant's bill "should
be denied in full because it has failed to attach an
affidavit verifying its costs." The Government is
totally wrong. The Court's standard Bill of Costs form
specifically contains declaratory language that is required
by 28 U.S.C. § 1924. Defendant's counsel filed, for
his client, the official form verifying that "the
foregoing costs are correct and were necessarily incurred in
this action and that the services for which fees have been
charged were actual and necessarily performed."
there is no question that the Defendant, through counsel,
properly provided a verified Bill of Costs as required by 28
U.S.C. § 1924.
Government argues that Defendant, MWI, is not entitled to $8,
305.50 of the $16, 313.20 it is claiming in deposition costs.
The Government indicated that counsel "does not
believe" that MWI's counsel played any of the
videotapes for which Defendant is requesting costs during the
trial of this matter and, therefore, is not entitled to be
reimbursed for these costs. Again, the Government is wrong.
Defense counsel pointed out that there were "at
least" two of the videotaped depositions "played at
28 U.S.C. § 1920(2), as well as LCvR 54.1(d)(6), it is
clear that the Clerk of Court "shall tax the costs of
the original and one copy of any deposition noticed by the
prevailing party, ... if the deposition was used on the
record, at a hearing or at trial." MWI was required to
review the videotaped depositions in order to file its
objections and counter-designations before trial. In
addition, the question under 28 U.S.C. § 1920(2), is
whether the deposition was "necessarily obtained"
for use in the case. Depositions are "necessarily
obtained" if- at the time the depositions were taken --
it was reasonable for the defendant to assume that the
depositions would be necessary for use in the trial or for
future depositions, motions, pretrial pleadings, or trial.
Sykes, 755 F.Supp.2d at 121.
argues that the depositions were "necessarily
obtained" because they were designated for potential use
as evidence at trial, and attached to motion papers and other
filings on the record. In particular, in the Joint Pretrial
Statement that Plaintiffs submitted, they named the deponent
as a witness who might be called at trial. Obviously, the
Defendant had to be prepared to cross-examine that particular
witness by using the deposition. In Long v. Howard
Univ., 561 F.Supp.2d 85, 98-99 (D.D.C. 2008), the Court
noted that there "are circumstances under which a
litigant would find it necessary to obtain the deposition
transcript... the fact that plaintiff ultimately did not call
one of his listed witnesses to testify at trial is irrelevant
because his listing of the witness in the first instance made
it 'necessary' for the other side to obtain the
transcript for its anticipated use in the case." That
reasoning is directly applicable to this case.
Government also argues that the videotaped deposition costs
should not be allowed because Defendant is claiming the costs
of both a written transcript and a videotape of the
depositions. In this particular instance, it was the
Government and not MWI who noticed and took the videotaped
depositions of the five employees who were deposed; Defendant
merely purchased a copy of the written transcript and
videotape afterwards. Therefore, it is clear that MWI was not
engaged in an unnecessary "fishing expedition" as
the Government argues.
Government also objects to $33, 200.76 in Bond Costs on the
basis that "MWI is not permitted to claim both insurance
premiums and letters of credit in a bill of costs."
While the Ninth Circuit has issued an opinion in support of
the Government's position, several other Courts of Appeal
have held that both insurance premiums and letters of credit
fees are recoverable as bond costs. See e.g., Dana
Corporation v. IPC Ltd P'ship, 925 F.2d 1480 (Fed.
Cir. 1991) (unpublished); Bose Corp. v. Cons. Union of
U.S.. Inc., 806 F.2d 304, 305 (1st Cir. 1986). The
Government has not suggested that the bond costs were
unreasonable or too high. Consequently, it has failed to meet
its burden of proving that bond costs were higher than they
should have been for a bond without the letters of credit.
See e.g., Dana Corp., 925 F.2d at 1480;
Bose Corp., 806 F.2d at 305.
these reasons, the Court concludes that Defendant is entitled
to the full amount of costs requested by ...