FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAY 02, 2001 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 98-9566

________________________ D. C. Docket No. 97-00017-CV-1 ARCADIAN FERTILIZER, L.P., Plaintiff-Appellee,

versus MPW INDUSTRIAL SERVICES, INC., Defendant-Appellant.

________________________ Appeal from the United States District Court for the Southern District of Georgia

_________________________ (May 2, 2001)
Before DUBINA, FAY and COX, Circuit Judges. PER CURIAM:2 MPW Industrial Services, Inc. (MPW ) appeals from a judgment awarding Arcadian Fertilizer, L.P. (Arcadian) damages, prejudgment interest and costs on Arcadian’s breach of contr act and negligence claims. FACTS Arcadian operates a fertilizer plant inAugusta, Georgia which includes a facility dedicated to the production of amm onia. Arcadian hired MPW to clean the build-up from a set of boiler tubes calle d the Nooter bundle, which MPW did by blasting water through the tubes and by scrubbi ng them with wire brushes. Less than a month after MPW technicians finished cleaning out the Nooter bundle, Arcadian employees observed steam and water escapi ng from the top of the adjacent secondary reformer, the result of an apparent rupture in the system. When the Nooter bundle was removed, a brush remnant was found wedged in the vicinity of a ruptured tube. PROCEDURAL HISTORY Arcadian filed suit for negligence and br each of contract. After a seven day trial, the jury found for Arcadian, finding that MPW had breached its contract, was negligent in its actions, and that MPW’s ne gligence and breach of contract were the proximate cause of Arcadian’s damages. The jury also attributed twenty-five percent of the negligence proximately causing the tube failure to Arcadian. The verdict1 The district court calculated the total of “exhibit fees” as $16,317.19. Our calculation of the sums enumerated in the order amounts to $16,011.19. 3 awarded $2,800,000 in compensatory dama ges and $980,000 in pre-judgment interest on the contract claim. Following trial, Arcadian submitted a bill of costs pursuant to Fed. R. Civ. P. 54 that included, among other items, a cl aim of $29,208.97 for trial exhibits. See Fed. R. Civ. P. 54. Of this amount, $3,173. 42 was for Arcadian’s share of copies of oversize documents, color photographs and video exhibits. Arcadian claimed an additional $25,675.55 in expenses for a comput er animation. The computer animation was used during trial to depict the chemi cal process for producing fertilizer and the events leading up to the rupture of the Nooter bundle. The district court, rejecting MPW’s arguments to the contrary, impliedly concluded that the exhibits were necessary for use in the case. Acknowledging that the computer animation was especially help ful to the jury, the court taxed MPW half the total expense of the animation, or $12, 837.77. Costs taxed for the other exhibits amounted to $16,317.19, 1 with the sum of all taxed costs totaling $30,144.64. MPW appeals.2 MPW also argues that the district court erred in: (1) excluding evidence of prior and subsequent tube failures; (2) allowing Arcadian’s contract theory; (3) not applying comparative negligence principles; (4) allowing the jury to award interest; (5) excluding the testimony of a former employee of Nooter; (5) not excluding Arcadian’s computer animation; and in (6) denying MPW’s motions for directed verdict on liability and on damages. MPW also raises objections to the taxation of costs unrelated to the computer animation and trial exhibit issues with which we concern ourselves infra . We find no merit in these arguments and reject them without discussion. See 11th Cir. R. 36-1. 4 ISSUES ON APPEAL Although MPW raises numerous issues in its brief, only one of them warrants discussion: 2 whether the district court abused its discretion in awarding costs to Arcadian for trial exhibits and a computer animation. See Fed. R. Civ. P. 54(d)(1); 28 U.S.C. § 1920. STANDARD OF REVIEW We review a costs award for abuse of discretion. EEOC v. W&O, Inc. , 213 F.3d 600, 619 (11th Cir. 2000). We review a trial court’s conclusions of law de novo. Sandoval v. Hagan , 197 F.3d 484, 491 (11th Cir. 1999). CONTENTIONS OF THE PARTIES MPW argues the district court abused its discretion in taxing the trial exhibits and computer animation as costs. MPW c ontends that many of the exhibits were not used at trial, and that some of them were cumulative. MPW also notes that Arcadian failed to obtain approval from the district court prior to incurring the cost of the computer animation, approval MPW mainta ins was required if Arcadian intended to5 attempt to tax it as cost. Finally, MP W contends that there is no statutory authorization for taxing the cost of the computer animation. Arcadian responds that costs associat ed with oversized documents, color photographs, and videotape exhibits are ex emplifications, and are recoverable when used at trial so long as they were n ecessarily obtained for use in the case. See28 U.S.C. § 1920(4). In support, Arcadian points to case law from other circuits allowing the recovery of expenses for the pr oduction of demonstrative exhibits. See Maxwell v. Hapag-Lloyd Aktiengesellschaft , 862 F.2d 767, 770 (9th Cir. 1988) (allowing costs for illustrative materials); In re Kulicke & Soffa Indus. Inc. , 747 F. Supp. 1136, 1147 (E.D. Pa. 1990) (allowing unobjected-to costs fo r demonstrative exhibits). Arcadian also argues that the district court acted with in its discretion in taxing half the cost of the computer animation to MPW because it was particularly helpful to the jury. DISCUSSION Federal Rule of Civil Procedure 54(d)(1 ) allows prevailing parties to receive costs other than attorneys’ fees. Fed. R. Ci v. P. 54(d)(1). The presumption is in favor of awarding costs. Manor Healthcare Corp. v. Lomelo , 929 F.2d 633, 639 (11th Cir. 1991). As noted in the rule, the discretion of the district court to award costs is subordinated to Congress’s dictates when express provisions are made in federal3 The text of Rule 54(d)(1): Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Such costs may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court. Fed. R. Civ. Pro. 54(d)(1). 6 statutory authority. 3 Fed R. Civ. P. 54(d)(1). Although Congress has displaced or modified district courts’ discretion in a variety of contexts, particularly where costs are taxed against the United States and its officers and agencies, see, e.g. 15 U.S.C. §§ 77v(a) & 79y (regarding Securities and Exchange Commission); 47 U.S.C. § 401 (regarding Communications Commission), the most significant provisions are in 28 U.S.C. § 1920, which enumerates the categories of costs and fees that a judge or clerk of court may tax. 28 U.S.C. § 1920. As the Supreme Court ha s explained, absent explicit statutory or contractual author ization, federal courts are bound by the limitations set out in 28 U.S.C. § 1920. Crawford Fitting Co. v. J.T. Gibbons, Inc. , 482 U.S. 432, 445, 107 S. Ct. 2494, 2499 (1987). The only provision in § 1920 that is argua bly relevant to Arcadian’s expenses for the copies of oversize documents, colo r photographs, videotape exhibits and the computer animation is § 1920(4), which allo ws “[f]ees for exemplification and copies of papers necessarily obtained for use inthe case.” 28 U.S.C. § 1920(4). For costs to be taxed under § 1920(4), anitem must fit within either the category “copies of4 In Bonner v. City of Pritchard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. 7 paper” or the category “exe mplification.” We read “c opies of paper” to mean reproductions involving paper in its various fo rms, and conclude th at because oversize documents and color photographs are capable of this characterization, taxation of these costs was not error. However, neither the videotape exhibits nor the computer animation are susceptible to this characterization, and, as no other provision in § 1920 permits the taxation of this sort of demons trative exhibit, we must decide whether videotape exhibits and computer animations are “exemplifications” within the meaning of § 1920(4). The issue is reso lved by an analysis of the logic of EEOC v. W&O, Inc. , 213 F.3d 600 (11th Cir. 2000) and Johns-Manville Corp. v. Cement Asbestos Products Co. , 428 F.2d 1381 (5th Cir.1970).
In Johns-Manvillethe former Fifth Circuit 4 addressed the propriety of taxing the cost of charts and models as physical e xhibits, and, after deciding that there is no statutory provision for their taxation, concl uded that absent prior authorization from the court they may not be taxed as costs. Johns-Manville Corp. , 428 F.2d at 1385. More recently we have revisited the holding of Johns-Manvilleand its conclusion that no statutory provision exists for the taxation of these kinds of exhibits, and concluded that the Supreme Court’s determination in Crawford Fitting that statutory8 authorization is an essential prerequisite to an award of costs necessarily abrogates that portion of the Johns-Manvilledecision that condoned taxation if prior authorization had been obtained. W&O, Inc. , 213 F.3d at 623. This means that in this circuit, physical exhibits like models and charts simply may not be taxed as costs because there is no statutory authorization. Id; Johns-Manville Corp. , 428 F.2d at 1385. Guided by the logic of Johns-Manvilleand W&O, Inc. which excludes physical models from § 1920(4)’s ambit, we conclude that the te rm “exemplification” imports the legal meaning of “[a]n offi cial transcript of a public r ecord, authenticated as a true copy for use as evidence,” B LACK ’ S L AW D ICTIONARY593 (7th ed. 1999), and not the broader and common connotation that in cludes “a showing or illustrating by example.” W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY795 (1981). Contra Cefalu v. Village of Elk Grove , 211 F.3d 416, 427-28 (7th Cir. 2000) (discussing alternative meanings of term and adop ting broader construction). Because the videotape exhibits and the computer animation are neither copies of paper nor exemplifications within the meaning of § 1920(4), they fall within the unauthorized5 It is not clear from the record whether the videotape exhibits are actually excerpts of videotape depositions, which may be taxed separately as costs pursuant to 28 U.S.C. § 1920(2), provided that the deposition meets the requirements outlined in Morrison v. Reichhold Chemicals, Inc. , 97 F.3d 460 (11th Cir. 1996). Morrison , 97 F.3d at 464-65 (holding that “when a party notices a deposition to be recorded by nonstenographic means, or by both stenographic and nonstenographic means, and no objection is raised at that time by the other party to the method of recordation pursuant to Federal Rule of Civil Procedure 26(c), it is appropriate under § 1920 to award the cost of conducting the deposition in the manner noticed.”). Should the district court determine on remand that the videotape exhibits are indeed excerpts of videotape depositions that have not previously been accounted for in the court’s calculations, and that Arcadian has met the requirements of Morrison , the court may in its discretion tax the costs of such exhibits. 9 category described by Johns-Manvilleand W&O, Inc. and taxing these costs was

error. 5
CONCLUSION We conclude that the costs for th e oversize documents and the color photographs are taxable under § 1920(4). Until Congress sees fit to amend the language of § 1920 to include the innovative technologies currently used in the production of demonstrative exhibits, comput er animations and videotape exhibits are not taxable because there is no statutory authority. See W&O, Inc. , 213 F.3d at 623. Accordingly, we vacate the award of cost s with instructions to retax costs in accordance with this opinion. The judgment is otherwise affirmed. JUDGMENT AFFIRMED; AWARD OF COSTS VACATED AND REMANDED WITH INSTRUCTIONS.