United States District Court, D. Massachusetts
GREAT NORTHERN INSURANCE CO. Plaintiff,
EASTERN PROPANE GAS, INC., Defendant.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S
REQUESTS FOR COSTS AND ATTORNEYS' FEES
GAIL DEIN UNITED STATES MAGISTRATE JUDGE.
January 23, 2015, the water supply line at an unoccupied home
owned by the plaintiff's insured, Anne Davis, froze and
ruptured, causing in excess of $700, 000.00 in damage. Great
Northern Insurance Company ("Great Northern")
insured the property, and paid the property damage claim. It
brought this action as the insured's subrogee against
Eastern Propane Gas, Inc. ("Eastern Propane"), the
entity that provided propane gas to heat the property. While
during pre-trial discovery various claims and defenses were
proffered by both sides, by the time of trial the parties
focused on the critical factual dispute: namely, whether
Eastern Propane actually had delivered the propane its
records had indicated it had delivered. It was undisputed by
the time of trial that if Eastern Propane had, in fact, made
the delivery, it was not a lack of fuel that had caused the
pipes to freeze.
trial was held beginning on April 18, 2017. The jury returned
its verdict on April 20, 2017, finding in response to special
questions that Great Northern had not established by a
preponderance of the evidence that Eastern Propane had failed
to deliver the amount of propane gas that it said it had
delivered. (See Docket No. 97). Judgment, therefore,
entered in favor of Eastern Propane.
matter is presently before the court on Eastern Propane's
"Requests for Costs and for Attorney's Fees."
(Docket No. 100). Therein, Eastern Propane seeks costs
pursuant to Fed.R.Civ.P. 54(d)(1) in the amount of $1, 075.70
for photocopying charges and two deposition transcripts. In
addition, Eastern Propane seeks to recover its attorneys'
fees, which exceed $100, 000.00, on the grounds that Great
Northern had not put on any evidence that Eastern Propane was
negligent, and that this court has the inherent power to
award fees when the circumstances so warrant. Great Northern
challenges the request for costs for copying and for one of
the depositions, and opposes the request for attorneys'
fees in its entirety.
consideration of the parties' arguments, and for the
reasons detailed herein, this court awards Eastern Propane
its costs in their entirety, and denies the request for
Request for Costs
to Fed.R.Civ.P. 54(d), "[u]nless a federal statute,
these rules, or a court order provides otherwise, costs -
other than attorney's fees - should be allowed to the
prevailing party." Thus, "[t]here is a background
presumption favoring cost recovery for prevailing
parties." B. Fernandez & HNOS, Inc. v. Kellogg
USA, Inc., 516 F.3d 18, 28 (1st Cir. 2008) (additional
citations omitted). Nevertheless, the court has "wide
latitude in shaping the contours of such awards."
Conway v. Licata, 144 F.Supp.3d 212, 217 (D. Mass.
2015) (internal quotation omitted). Among the costs that are
generally recognized as recoverable are some deposition
transcripts and copying costs. See Templeman v. Chris
Craft Corp., 770 F.2d 245, 248 (1st Cir. 1985) (citing
28 U.S.C. § 1920).
instant case, Eastern Propane is seeking to recover the costs
of the deposition transcripts for Richard Noone ($510.95) and
Robert Flachbart ($215.35). It is well-established that
"if depositions are either introduced in evidence or
used at trial, their costs should be taxable to the losing
party." Id. at 249. Great Northern does not
challenge the amount for Mr. Noone's deposition, since it
was used in cross-examination at trial. It does challenge the
cost for the deposition of Mr. Flachbart since it was not
used at trial. However, Mr. Flachbart was the key witness in
the case, as he was the driver who delivered the propane gas.
Presumably, his deposition was noticed by the plaintiff. The
"necessity" for the deposition '"is
determined as of the time of taking, and the fact that a
deposition is not actually used at trial is not
controlling.'" Martinez v. Cui, No.
06-40029-FDS, 2009 WL 3298080, at *2 (D. Mass. April 13,
2009) (quoting Sales v. Marshall, 873 F.2d 115, 120
(6th Cir. 1989)) (punctuation omitted). Where, as here,
"there can hardly be any suggestion" that the
deposition was taken solely "for defendant's
investigative or discovery purposes or purely for defense
counsel's convenience[, ]" this court finds the
award of costs for the deposition to be appropriate.
Id. (punctuation omitted). See also
Templeman, 770 F.2d at 249 (it "is within the
discretion of the district court to tax deposition costs if
special circumstances warrant it, even though the depositions
were not put in evidence or used at the trial").
Therefore, this court will award Eastern Propane the full
amount of the deposition transcripts it is seeking.
Propane is also seeking $394.40 in copying charges. Eastern
Propane has submitted invoices which indicate the number of
pages copied and the charges incurred. It appears that the
copying was done soon after new counsel for the defendant
entered their appearance. While Eastern Propane has recognized
that copying costs are recoverable "where the copies are
necessarily obtained for use in the case" it has not
provided any additional description of the need for the
charges. See Requests for Costs and Fees (Docket No.
100) at 4 (quoting 28 U.S.C. § 1920(4)). Great Northern
objects to this request on the grounds that insufficient
detail is provided. Given the minimal amount requested, and
the fact that the copying was clearly done in connection with
new counsel preparing the case, this court will allow the
request in its entirety.
recoverable, copying costs must be "reasonably necessary
to the maintenance of the action." Martinez,
2009 WL 3298080, at *3 (citing 28 U.S.C. § 1920(4);
additional citations omitted). "While a page-by-page
justification is not required, the prevailing party must
offer some evidence of necessity." Id.
(quotations and citations omitted). Thus, "counsel
should inform the Court of the number of copies, the cost of
each copy, and provide, if possible, a breakdown of the
reasons why photocopying of certain documents was
necessary." Id. (quotations omitted). While
there is certainly room for a more detailed description of
the defendant's need for the copies, this court is aware
that the case involved a claim of property damage (presumably
justified by invoices) for more ...