IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

OTIS CHAMBERS, §

 §

Plaintiff, §

 § Civil Action No. 3:05-CV-1533-D

VS. §

 §

JOSEPH T. RYERSON & SON, INC., §

et al., §

 §

Defendants. §

ORDER

After making an independent review of the pleadings, files,

and records in this case, the August 31, 2007 findings and

recommendation of the magistrate judge, and the September 17, 2007

objections of defendants Joseph T. Ryerson & Son, Inc. and Ryerson

Tull, Inc. (collectively, “Ryerson”), the court concludes that the

findings and recommendation are correct in part and they are

therefore adopted in part.

I

In its judgment in this case, filed July 2, 2007, the court

awarded Ryerson its taxable costs of court, as calculated by the

clerk of court, and assessed these costs against plaintiff Otis

Chambers (“Chambers”). After the clerk of court calculated and

assessed the costs, Chambers objected, and the court referred the

matter to the magistrate judge for determination or recommendation.

The magistrate judge concluded that his decision was limited to

making a recommendation. In his August 31, 2007 findings and

recommendation, he recommends first that no costs be taxed against
- 2 -

Chambers. Alternatively, he recommends that the costs calculated

by the clerk be reduced to $5,387.35.

Following de novo review, the court declines to accept the

recommendation that all taxable costs be denied. Fed. R. Civ. P.

54(d)(1) “contains a strong presumption that the prevailing party

will be awarded costs.” Pacheco v. Mineta, 448 F.3d 783, 793 (5th

Cir. 2006). The Fifth Circuit has held that “‘the prevailing party

is prima facie entitled to costs,’ and has described the denial of

costs as ‘in the nature of a penalty.’” Id. at 793-94 (quoting

Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985)). Thus

although Rule 54(d)(1) confers discretion on the court in awarding

costs, this discretion is “circumscribed by the judicially-created

condition that a court may neither deny nor reduce a prevailing

party’s request for cost without first articulating some good

reason for doing so.” Id. at 794 (internal quotation marks

omitted).

The court is unable to discern “some good reason for doing so”

in the present case. Although the factors the magistrate judge

cites for recommending denial of costs are proper considerations

and may warrant denying costs in some circumstances, see id., the

court does not find those circumstances to be present here. The

amount of costs taxed against Chambers, as modified by today’s

order, is $5,427.73. Chambers and his wife earn a combined annual

income of $31,890. They own a house in which they have acquired
- 3 -

$44,000 in equity, and they possess two vehicles. Although

Chambers has an unpaid medical bill of approximately $2,000, and

the Chambers’ monthly expenses exceed their combined income, it is

not clear that they will be unable to pay the taxed costs over a

reasonable period of time. 

Moreover, although this matter is within the court’s

discretion, it finds it to be in the interest of justice that

decisions of this type be as consistent as possible, and that

similarly-situated litigations be treated alike. Chambers appears

to be far more able to pay costs than other parties who have been

required by this court to do so. See, e.g., McNeil v. Wyeth, 2005

U.S. Dist. LEXIS 9677, at *5 (N.D. Tex. May 20, 2005) (Kaplan, J.)

(requiring payment of $6,838.00 in costs by a 71-year-old woman

with only $13,944.00 in annual income and $500 in assets, and

concluding that “even an indigent litigant is not automatically

exempted from paying costs”). 

Considering Chambers’ financial position, and the fact that

the other factors do not warrant the denial of costs in this case,

see Pacheco, 448 F.3d at 793 (denying costs to losing party even

though claim was brought in good faith and against party (the

federal government) with strong financial standing), the court

concludes in its discretion that Chambers has not overcome the

“strong presumption” against denying costs. Id. Accordingly, the

court declines to adopt the recommendation of the magistrate judge
- 4 -

that costs be denied Ryerson.

II

The court adopts in part the magistrate judge’s alternative

recommendation that Ryerson be awarded $5,387.35 in taxable costs.

Chambers does not object to the magistrate judge’s alternative

recommendation. Ryerson objects to the magistrate judge’s

alternative recommendation that Ryerson should be denied the sum of

$196.89 of the $5,584.24 total sum it requests.

The first cost item at issue is $136.51 for a copy of the

deposition of Ryerson’s psychiatric expert, Jaye Douglas Crowder,

M.D. Under Fifth Circuit law, 

[i]f, at the time it was taken, a deposition

could reasonably be expected to be used for

trial preparation, rather than merely for

discovery, it may be included in the costs of

the prevailing party. Similarly, a deposition

copy obtained for use during trial or for

trial preparation, rather than for the mere

convenience of counsel, may be included in

taxable costs.

Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993).

Ryerson contends that the magistrate judge erred in denying this

cost because the sole inquiry should have been whether the

deposition itself was reasonably necessary, without any separate

inquiry into whether the deposition copy was necessary as well.

The court disagrees. The Fifth Circuit clearly distinguishes

between the necessity of depositions and of deposition copies. See

id. The court therefore reaches the same conclusion as did the
- 5 -

magistrate judge. Because Ryerson has failed to demonstrate that

the transcript was reasonably necessary at the time it was ordered,

the court denies the $136.51 cost for obtaining the transcript. 

The magistrate judge also recommends denying $60.38 in fees

charged by the Texas Department of Assistive and Rehabilitative

Services (“TDARS”) and the National Labor Relations Board (“NLRB”)

for the production of records, based on the conclusion that these

costs were not reasonably necessary. Ryerson objects to this

recommendation. Following de novo review, the court holds that

Ryerson is entitled to recover these fees as costs. 

First, it was reasonably necessary for Ryerson to review the

content of Chambers’ testimony before the NLRB, because Chambers

does not dispute that the testimony involved the same set of

factual circumstances as did this case (albeit raising separate and

distinct claims). Second, the TDARS records were reasonably

necessary to make an independent evaluation of Chambers’ physical

health, which Chambers had made an issue in the case. Third, it is

of no moment that Ryerson was charged by TDARS and NLRB for such

items as “clerical hours,” because paying the charges was a

condition for receiving the records. Fourth, there is no

contention that the fees charged by NLRB and TDARS are

unreasonable. 

For the foregoing reasons, the court concludes that Ryerson is

entitled to recover the sum of $5,447.73 in taxable costs of court.
- 6 -

The magistrate judge’s August 31, 2007 findings and recommendation

are therefore adopted in part to that extent.

SO ORDERED.

December 10, 2007.

_________________________________

SIDNEY A. FITZWATER

CHIEF JUDGE