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

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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 contract and negligence claims.

FACTS 

Arcadian operates a fertilizer plant in Augusta, Georgia which includes a

facility dedicated to the production of ammonia. Arcadian hired MPW to clean the

build-up from a set of boiler tubes called the Nooter bundle, which MPW did by

blasting water through the tubes and by scrubbing them with wire brushes. Less than

a month after MPW technicians finished cleaning out the Nooter bundle, Arcadian

employees observed steam and water escaping 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 breach 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 negligence 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 verdict
1 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 damages 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 claim 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 computer animation. The computer animation

was used during trial to depict the chemical 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 helpful 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 contends 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 maintains was required if Arcadian intended to
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attempt to tax it as cost. Finally, MPW contends that there is no statutory

authorization for taxing the cost of the computer animation.

Arcadian responds that costs associated with oversized documents, color

photographs, and videotape exhibits are exemplifications, and are recoverable when

used at trial so long as they were necessarily obtained for use in the case. See 28

U.S.C. § 1920(4). In support, Arcadian points to case law from other circuits allowing

the recovery of expenses for the production 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 for demonstrative exhibits). Arcadian

also argues that the district court acted within 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. Civ. 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 federal
3 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).

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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 has explained, absent

explicit statutory or contractual authorization, 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 arguably relevant to Arcadian’s expenses

for the copies of oversize documents, color photographs, videotape exhibits and the

computer animation is § 1920(4), which allows “[f]ees for exemplification and copies

of papers necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). For costs

to be taxed under § 1920(4), an item must fit within either the category “copies of
4 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.

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paper” or the category “exemplification.” We read “copies of paper” to mean

reproductions involving paper in its various forms, and conclude that 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 demonstrative exhibit, we must decide whether

videotape exhibits and computer animations are “exemplifications” within the

meaning of § 1920(4). The issue is resolved 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-Manville the former Fifth Circuit4

 addressed the propriety of taxing

the cost of charts and models as physical exhibits, and, after deciding that there is no

statutory provision for their taxation, concluded 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-Manville and 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 statutory
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authorization is an essential prerequisite to an award of costs necessarily abrogates

that portion of the Johns-Manville decision 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-Manville and W&O, Inc. which excludes physical

models from § 1920(4)’s ambit, we conclude that the term “exemplification” imports

the legal meaning of “[a]n official transcript of a public record, authenticated as a true

copy for use as evidence,” BLACK’S LAW DICTIONARY 593 (7th ed. 1999), and not the

broader and common connotation that includes “a showing or illustrating by

example.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 795 (1981). Contra

Cefalu v. Village of Elk Grove, 211 F.3d 416, 427-28 (7th Cir. 2000) (discussing

alternative meanings of term and adopting 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 unauthorized
5 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.

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category described by Johns-Manville and W&O, Inc. and taxing these costs was

error.5

CONCLUSION

We conclude that the costs for the 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, computer 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 costs 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.