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Herron v. Mae

United States District Court, District of Columbia

February 22, 2018

FANNIE MAE, et al., Defendants.



         On March 8, 2016, the Court entered judgment in favor of Defendants in this case. See 3/8/2016 Opinion [Dkt. 163]; 3/8/2016 Order [Dkt. 164]. While Plaintiff's appeal of that judgment was pending, Defendant Federal National Mortgage Association (Fannie Mae) submitted a Bill of Costs to the Court. See Bill of Costs [Dkt. 166] (First Bill of Costs). In an April 19, 2016 Minute Order, the Court stated that “While the Court finds that the costs that Fannie Mae has requested are not ‘excessive or unallowable' and that they are recoverable under Federal Rule 54(d)(1) of Civil Procedure and 28 U.S.C. § 1920, it hereby denies Defendants' Bill of Costs without prejudice pending resolution of the appeal.”

         On June 27, 2017, the United States Court of Appeals for the District of Columbia Circuit affirmed the Court's judgment, see Mandate [Dkt. 188]. Fannie Mae has accordingly refiled its Bill of Costs, see Notice and Refiling of Bill of Costs [Dkt. 185] (Refiled Bill of Costs), and Plaintiff Herron has renewed her earlier opposition. See Pl.'s Objections to Defs.' Bill of Costs [Dkt. 186] (Opp'n). In its April 19, 2016 Minute Order, the Court found that Fannie Mae's costs were recoverable, and the Court finds so here as well.


         Federal Rule of Civil Procedure 54(d)(1) gives the Court discretion to award fees to a prevailing party that fall under certain enumerated categories found in 28 U.S.C. § 1920 (2012). See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987). Further, 28 U.S.C. § 1961 states that “[i]nterest shall be allowed on any money judgment in a civil case.” That interest is assessed from the date of the original judgment of March 8, 2016. See Georgia Ass'n of Retarded Citizens v. McDaniel, 85 F.2d 794, 799 (1988). Interest accrues until the date of payment. 28 U.S.C. § 1961(b). “[T]he allowance, disallowance, or apportionment of costs is in the sound discretion of the district court.” Moore v. Nat'l Ass'n of Sec. Dealers, Inc., 762 F.2d 1093, 1107 (D.C. Cir. 1985). “Unsuccessful parties bear the burden of showing circumstances sufficient to overcome the presumption in favor of awarding costs to the prevailing party.” Long v. Howard Univ., 561 F.Supp.2d 85, 96 (D.D.C. 2008) (citing Baez v. U.S. Dep't of Justice, 684 F.2d 999, 1004 (D.C. Cir. 1982)).

         II. ANALYSIS

         The only difference between Fannie Mae's First Bill of Costs and Refiled Bill of Costs is that the Refiled Bill includes interest imputed from the day of judgment; the underlying costs have not changed. Similarly, Ms. Herron's renewed Opposition remains substantively similar to the Opposition she filed in response to Fannie Mae's First Bill of Costs.[1] Ms. Herron objects to Fannie Mae's proposed costs associated with: (1) five deposition transcripts; (2) witness fees for three witnesses; and (3) the conversion of physical documents into TIFF files.[2]

         A. Deposition Transcripts

         Ms. Herron contests Fannie Mae's request for transcript costs associated with five deposition witnesses whose testimony related only to damages. Opp'n at 4. She argues that because damages were not relevant to summary judgment, Fannie Mae should have waited to depose those witnesses and sought leave to re-open discovery in the event the Court denied summary judgment. Id.

         However, a party need not use a deposition transcript in order to recover costs associated with its creation. The D.C. Circuit has suggested that costs are appropriate where a deposition transcript would be used “to prepare for the trial which would have ensued had the district judge not granted summary judgment.” Sun Ship, Inc. v. Lehman, 655 F.2d 1311, 1318 n.49 (D.C. Cir. 1981). If a litigation proceeds long enough, damages will inevitably become relevant. There may be reasons to bifurcate discovery in particular circumstances, but the Federal Rules do not obligate a party either to proceed through discovery in fits and starts or to forgo costs to which it is otherwise entitled. Ms. Herron does not otherwise allege that the five witnesses were superfluous or irrelevant. Because it was reasonable to assume that the witnesses' testimony would likely have been necessary had the case proceeded past summary judgment, the Court concludes that Fannie Mae's request for costs is reasonable.

         B. Witness Fees

         Ms. Herron similarly objects to Fannie Mae's request for witness fees associated with three witnesses whose depositions were not used in the summary judgment briefing. Opp'n at 5. Again, the witnesses' testimony related only to damages. For the reasons articulated above, Fannie Mae acted reasonably in seeking discovery related to damages and is therefore entitled to fees associated with these three witnesses.

         C. Copies

         Finally, Ms. Herron asserts that Fannie Mae is not entitled to “copying” costs associated with creating electronic TIFF files. Ms. Herron asserts that the plain language of § 1920 and Local Rule 54.1(d) only allow for costs associated with the creation of physical copies. Opp'n at 5. In Ms. Herron's view, to do otherwise would “dispense with the ‘ordinary meaning' of ‘copies' in Section 1920(4) from its widely recognized ‘making copies' i.e., making ...

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