IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RUFUS ENGLISH, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 05-0312-WS-B

 )

CSA EQUIPMENT COMPANY LLC, )

 )

Defendant. )

ORDER

This matter is before the Court on defendant CSA Equipment Company LLC’s Motion to

Re-Tax Costs (doc. 67). Plaintiff has filed an Objection (doc. 69), and defendant has filed a

Reply (doc. 70) to same.

Plaintiff Rufus English (“English”) brought this action against defendant CSA Equipment

Company LLC (“CSA”) asserting causes of action for race and age discrimination, in violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; 42 U.S.C. § 1981; and

the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., as well as a state-law

claim for the tort of outrage. On August 22, 2006, the undersigned entered an Order (doc. 63)

granting summary judgment to CSA and dismissing English’s complaint in its entirety, on the

grounds that certain claims were barred for failure to exhaust administrative remedies, that

English had failed to establish that CSA’s stated reasons for the challenged personnel actions

were a pretext for unlawful discrimination, and that plaintiff had made no showing that might

satisfy any of the elements of an Alabama outrage claim.

On August 25, 2006, within the time frame specified by Local Rule 54.1(a)(1), CSA filed

a Bill of Costs (doc. 65) itemizing costs of $2,218.75 for depositions taken in the case, broken

down as follows: (a) original deposition transcript of plaintiff ($1,254.10); (b) copy of deposition

transcript of Robert Merle Smith ($516.15); (c) copy of deposition transcript of Michael Dean

Bowden ($196.95); and (d) copy of deposition transcript of Gerry Laneal Givens ($251.55). 

This submission was accompanied by a signed Declaration from CSA’s counsel of record, as

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required by 28 U.S.C. § 1924, declaring under penalty of perjury that these costs were correct,

that they were necessarily incurred in this litigation, and that the services for which the fees were

charged were actually and necessarily performed. On August 31, 2006, the Clerk of Court taxed

costs at $0.00, prompting CSA to file its Motion to Re-Tax Costs.

Pursuant to Rule 54(d), Fed.R.Civ.P., costs “shall be allowed as of course to the

prevailing party unless the court otherwise directs.” Id. This Rule does not confer upon district

courts unfettered discretion to “tax costs to reimburse a winning litigant for every expense he has

seen fit to incur in the conduct of his case.” Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235,

85 S.Ct. 411, 415, 13 L.Ed.2d 248 (1964). Rather, statutory authorization is a necessary

condition to the shifting of litigation costs. West Virginia Univ. Hospitals, Inc. v. Casey, 499

U.S. 83, 86, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991). “[A]bsent explicit statutory or contractual

authorization, federal courts are bound by the limitations set out in 28 U.S.C. § 1920” in

awarding costs to a prevailing party. Arcadian Fertilizer, L.P. v. MPW Indus. Services, Inc., 249

F.3d 1293, 1296 (11th Cir. 2001). That said, the Eleventh Circuit will not disturb an award of

costs except in the presence of a clear abuse of discretion. See, e.g., Maris Distributing Co. v.

Anheuser-Busch, Inc., 302 F.3d 1207, 1225 (11th Cir. 2002).

Under 28 U.S.C. § 1920(2), court reporter fees are properly taxed as costs for “any part

of the stenographic transcript necessarily obtained for use in the case.” Id.; see also Maris, 302

F.3d at 1225. Although the Eleventh Circuit has acknowledged that taxation of deposition costs

is authorized by statute, it has cautioned that such costs are not recoverable where “the

deposition costs were merely incurred for convenience, to aid in thorough preparation, or for

purposes of investigation only.” U.S. Equal Employment Opportunity Commission v. W&O,

Inc., 213 F.3d 600, 621 (11th Cir. 2000) (citation omitted).

Plaintiff’s arguments against taxation of the enumerated deposition costs are threefold. 

First, English states that, during the pendency of this litigation, CSA promoted or otherwise

rehired him for the position of company clerk, the very position that he claimed in this litigation

to have been wrongfully denied for discriminatory reasons. English speculates that “[t]his

litigation may have played a role in Mr. English obtaining the position which he sought,” 

(Objection (doc. 69), at 1), and asserts that this Court should therefore require each side to bear

its own costs. But plaintiff offers no evidence of any nexus between this litigation and CSA’s

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decision to promote him to company clerk in May 2006. CSA denies any such link. Further

attenuating any connection between this lawsuit and the May 2006 hiring, English did not

abandon or withdraw his claims after that event, but instead proceeded with his claims against

CSA, which claims were ultimately dismissed on summary judgment. Under no reasonable view

can English be viewed as a prevailing party, nor can CSA be reasonably perceived as anything

other than a prevailing party for purposes of Rule 54(d). In this Court’s opinion, the May 2006

hiring of English as a company clerk in no way militates against taxation of defendant’s costs to

plaintiff here.

Second, relying on appellate cases from other circuits dating back a half-century, English

points out that the facts of this litigation were hotly disputed, and that his burden of establishing

pretext was heavy. Certainly, the record reflects that at least most of plaintiff’s causes of action

were not frivolous, and that plaintiff appeared to have filed suit in good faith. But the pertinent

inquiry does not hinge on whether a plaintiff’s claims were frivolous or brought in bad faith. 

Rather, Rule 54(d)(1) makes clear that costs “shall be allowed as of course to the prevailing

party” absent countervailing circumstances. In that regard, the Eleventh Circuit has explained

that “[t]he presumption is in favor of awarding costs.” Arcadian, 249 F.3d at 1296. In this

Court’s view, the non-frivolity of plaintiff’s complaint is insufficient to overcome that

presumption in the particular posture of this action.

Third, plaintiff indicates that CSA did not reasonably need all of the deposition

transcripts for which taxation of costs is sought. The Court agrees, albeit only in part. As

mentioned supra, the statutory standard is whether a given transcript was “necessarily obtained

for use in the case.” 28 U.S.C. § 1920(2). There is no question that defendant reasonably

needed to take English’s deposition, and his deposition transcript featured prominently in the

undersigned’s summary judgment analysis. The cost of that transcript is properly taxed against

English. The other three items for which taxation of costs is sought are copies of the deposition

transcripts of CSA employees (Smith, Bowden and Givens) whose depositions were taken by

plaintiff’s counsel. The Smith and Bowden transcripts were of central importance to CSA’s

Motion for Summary Judgment, and the Court relied extensively on them in ruling on such

Motion. Therefore, the undersigned finds that the costs of copies of those two transcripts are

properly taxed as costs. See Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471 (10th Cir. 1997)

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(“A district court does not abuse its discretion in taxing transcription costs associated with

depositions that were actually utilized by the court in considering the defendant’s motion for

summary judgment.”). The Givens transcript rests on a different footing, however. Givens was

the successful candidate for one of the positions which plaintiff had sought. The submitted

excerpts from Givens’ deposition demonstrate that he was a tangential witness whose testimony

had (at best) limited relevance to the issues joined in this action and was largely unhelpful in

fleshing out any disputed legal or factual issue. Under the circumstances, CSA may have desired

a copy of the Givens transcript for convenience or for thoroughness of preparation, but it did not

necessarily obtain such transcript for use in the case. Therefore, the cost of the Givens transcript

will be disallowed.

For all of the foregoing reasons, CSA’s Motion to Re-Tax Costs is granted in part, and

denied in part. After disallowing $251.55 in costs for the copy of the deposition transcript of

Gerry Laneal Givens, costs are hereby taxed against plaintiff in the amount of $1,967.20.

DONE and ORDERED this 25th day of September, 2006.

s/ WILLIAM H. STEELE 

UNITED STATES DISTRICT JUDGE

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