United States District Court, W.D. Texas, San Antonio Division.
Michael ARNOLD, Linda Arnold, Plaintiffs
v.
ALLIED VAN LINES, INC., Defendant
SA-21-CV-00438-XR
|
Signed June 14, 2024
Background: Property owners brought action in state court against carrier, which owners hired to transport personal property and household items for their move from Alabama to Texas, seeking to recover for items that were damaged in transit. Following removal and jury verdict awarding owners $31,909 in damages, owners moved for award of attorney’s fees and costs and transporter moved for costs.
Holdings: The District Court, Xavier Rodriguez, J., held that:
[1] transaction between owners and carrier was not collect on delivery (COD), and thus owners were not entitled to award of attorney’s fees under Carmack Amendment;
[2] taxation of costs in favor of owners would be declined;
[3] carrier was entitled to award of costs under offer of judgment rule of procedure on ground that owners did not obtain more favorable verdict than unaccepted offer;
[4] carrier’s depositions of owners were necessary, entitling carrier to award of costs for deposition transcripts;
[5] carrier was entitled to award of costs for deposition exhibits;
[6] carrier failed to demonstrate that trial exhibit notebooks were necessarily obtained for use at trial, which was required for award of costs for such notebooks; and
[7] carrier was not entitled to requested award of $4,604.06 for its expert’s inspection and travel costs.
Owners’ motion denied; carrier’s motion granted in part.
See also 2022 WL 2392875.
West Headnotes (21)
| [5] | Costs, Fees, and Sanctions |
| In the context of awarding costs, offer of judgment rule of procedure is mandatory and leaves no room for court discretion. Fed. R. Civ. P. 68. |
| [6] | Costs, Fees, and Sanctions |
| Video depositions and written deposition transcripts are taxable costs so long as they are necessarily obtained for use in a case. 28 U.S.C.A. § 1920(2). |
| [8] | Costs, Fees, and Sanctions |
| Under the taxation of costs statute, copies of depositions are allowed as costs if they were necessarily obtained for use in a case. 28 U.S.C.A. § 1920(4). |
Nicholas S. Bressi, Law Office of Nicholas Bressi, Austin, TX, for Plaintiffs.
Emileigh Stewart Hubbard, Vic Houston Henry, Henry Oddo Austin & Fletcher, P.C., Dallas, TX, for Defendant.
ORDER
XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE
*1 On this date, the Court considered Plaintiffs’ application for attorney’s fees (ECF No. 105) and Defendant’s response (ECF No. 111). In addition, the Court also considered Defendant’s motion to award costs (ECF No. 106) and Plaintiffs’ response (ECF No. 107). After careful consideration, the Court issues the following order.
BACKGROUND
Plaintiffs Michael and Linda Arnold are husband and wife. In 2020, they moved residences from Alabama to Texas. In preparation for their move, the Arnolds hired Defendant Allied Van Lines, Inc. (“Allied”) to pack, store, and transport their household goods and personal property (“Items”).
Allied packed the Plaintiffs’ Items from March 31, 2020 to April 3, 2020, and stored Plaintiffs’ Items until the beginning of September 2020, at which point Allied delivered the Items to Plaintiffs in Texas. However, upon the delivery, Plaintiffs learned that some Items were damaged while in Allied’s possession.
On April 13, 2021, Plaintiffs brought suit against Allied in state court for the damage to the Items. See ECF No. 1. On May 3, 2021, Allied removed Plaintiffs’ claims to this Court as Plaintiff sought a claim under the Carmack Amendment, a federal statute governing the liability of those who provide transportation services in interstate commerce within the jurisdiction of the Surface Transportation Board, and claims for loss or damage to shipments moved in interstate commerce. 49 U.S.C. § 14706.
On March 18, 2022, Allied extended an offer of judgment to Plaintiffs for $32,500.00. ECF No. 106-2. However, Plaintiffs ultimately rejected the offer of judgment, electing instead to proceed to trial. See ECF No. 106.
The case was then tried by a jury from January 16, 2024, to January 18, 2024, before the undersigned. Ultimately, the jury issued a verdict awarding Plaintiffs $31,909 in damages. ECF Nos. 102, 103.
On February 7, 2024, Plaintiffs filed an application for attorney’s fees (ECF No. 105), seeking attorney’s fees under 49 U.S.C. § 14708 as well as costs. In turn, on February 8, 2024, Allied filed a motion to award costs (ECF No. 106) based on Plaintiffs’ alleged failure to obtain a judgment more favorable than the unaccepted offer.
DISCUSSION
I. Plaintiffs’ Application for Attorney’s Fees (ECF No. 105)
According to the parties, Plaintiffs’ entitlement to attorney’s fees under 49 U.S.C. § 14708 turns on (1) whether the transaction between Plaintiffs and Allied was a collect-on-delivery (“C.O.D.”) transaction and (2) whether Plaintiffs are “prevailing parties” such that this Court may properly award attorney’s fees. ECF Nos. 105, 111.
The language of 49 U.S.C. § 14708(d) reads:
In any court action to resolve a dispute between a shipper of household goods and a carrier providing transportation or service subject to jurisdiction under subchapter I or III of chapter 135 concerning the transportation of household goods by such carrier, the shipper shall be awarded reasonable attorney’s fees if–
(1) the shipper submits a claim to the carrier within 120 days after the date the shipment is delivered or the date the delivery is scheduled, whichever is later;
*2 (2) the shipper prevails in such court action; and
(3)(A) the shipper was not advised by the carrier during the claim settlement process that a dispute settlement program was available to resolve the dispute;
(B) a decision resolving the dispute was not rendered through arbitration under this section within the period provided under subsection (b)(8) of this section or an extension of such period under such subsection; or
(C) the court proceeding is to enforce a decision rendered through arbitration under this section and is instituted after the period for performance under such decision has elapsed.
(emphasis added). Notably, 49 U.S.C. § 14708(f) specifically limits applicability of the section’s provisions to “collect-on-delivery transportation of household goods.”
a. Was the Move a C.O.D. Transaction?
According to Plaintiffs, “the undisputed and uncontroverted evidence at trial proved that the Bill of Lading and Freight Bill signed by both parties clearly marked the ‘Payment Type’ as ‘C.O.D.’ ” ECF No. 105 at 3; see Pl.’s Trial Exs. 3, 4. In addition, Plaintiffs contends that “the uncontroverted testimony of Michael Arnold established that Plaintiffs paid Allied via the making of a deposit paid on April 9, 2020 in the amount of $8,149.95 and the shipment was then paid COD at time of delivery on September 8, 2020, in the amount of $15,785.74” and that “Mr. Arnold further testified that he was required to pay at time of the delivery, and he understood the payment method to be ‘C.O.D.’ ” ECF No. 105 at 3.
According to Allied, Plaintiffs paid for the shipment in advance of the delivery as demonstrated by Plaintiffs’ credit card receipts and per the facts stipulated to by Plaintiffs at trial. See Pl.’s Trial Ex. 23; Def.’s Trial Ex. 23; ECF No. 82 at 4 (“Prior to delivery, Plaintiffs made payments for their move on April 20, 2020, and September 8, 2020, for a total of $23,935.69.”); id. (“On September 9, 2020, Allied delivered the Plaintiffs’ household goods to them in Guadalupe County, Texas.”).
[1]“As a general rule, the common practice of shipping goods collect on delivery (C.O.D.) to a buyer instructs the carrier not to deliver the goods until the price has been collected.” Young v. Santa Fe Trail Transp. Co., 179 Kan. 678, 681, 298 P.2d 235 (1956); see also Hoover v. Allied Van Lines, Inc., 111 P.3d 1076 (Kan. Ct. App. 2005). Specifically, Black’s Law Dictionary defines C.O.D. as “1. Cash on delivery; collect on delivery. By consenting to this delivery term, the buyer agrees to pay simultaneously with delivery and appoints the carrier as the buyer’s agent to receive and transmit the payment to the seller. With C.O.D. contracts, the practice of carriers has traditionally been to disallow inspection before payment. 2. Costs on delivery. 3. Cash on demand.” C.O.D., Black’s Law Dictionary (11th ed. 2019) (emphasis added). Thus, to recover attorney’s fees under 49 U.S.C. § 14708, Plaintiffs must have paid Allied at the time of delivery—not before or after delivery.
[2]Here, the evidence demonstrates that the transaction was not C.O.D. Despite Mr. Arnold’s testimony that he understood the move to be C.O.D. and the Bill of Lading’s indication that the transaction was C.O.D., ECF No. 105 at 66–68; Trial Tr. 102:23–103:16, the other evidence and Plaintiffs’ own stipulations demonstrate the contrary, see ECF No. 105 at 69–71; ECF No. 82 at 4. First, the credit card receipts proffered by Plaintiffs here show that payment for the shipment was made before delivery. ECF No. 105 at 69–71. Second, Plaintiff’s stipulated that “[p]rior to delivery, Plaintiffs made payments for their move on April 20, 2020, and September 8, 2020, for a total of $23,935.69” and that “[o]n September 9, 2020, Allied delivered the Plaintiffs’ household goods to them in Guadalupe County, Texas.” ECF No. 82 at 4.
*3 Accordingly, since Plaintiffs paid Allied before delivery, Plaintiffs move was not a C.O.D. transaction. Therefore, Plaintiffs are not entitled to attorney’s fees. See 49 U.S.C. § 14708(f).
b. Are Plaintiffs Prevailing Parties?
Given that the Court concludes that the transaction between the Plaintiffs and Allied was not C.O.D., the Court need not address whether Plaintiffs are prevailing parties for the purposes of attorney’s fees under 49 U.S.C. § 14708.
c. Entitlement to Costs?
[3]Though Plaintiffs purport to seek recovery of costs in their motion, Plaintiffs have not filed a bill of costs with the Court pursuant to Local Rule CV-54. See ECF No. 105. Accordingly, the Court declines to tax costs in favor of Plaintiffs. See MWK Recruiting, Inc. v. Jowers, No. 1:18-CV-444-RP, 2024 WL 756280, at *6 (W.D. Tex. Jan. 29, 2024) (“Failure to file a bill of costs precludes a party from recovering taxable costs awarded under Rule 54(d)(1).” (alterations omitted)).
II. Defendant’s Motion to Award Costs (ECF No. 106)
In its motion to award costs, Allied contends that it made a valid offer of judgment to Plaintiff for $32,500.00 on March 18, 2022, which Plaintiffs ultimately rejected. ECF No. 106 at 3. Allied argues that the judgment obtained by Plaintiffs was not more favorable than that unaccepted offer of judgment, and Allied is thus entitled to recover from Plaintiffs all costs incurred after the offer was made. Id.
Under Rule 68(a), “[a]t least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.” However, if that offer is rejected and “[i]f the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” Fed R. Civ. Pro. 68. The Supreme Court has stated that “[t]he plain purpose of Rule 68 is to encourage settlement and avoid litigation.” Marek v. Chesny, 473 U.S. 1, 5, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985).
[4] [5]Here, given that Plaintiff ultimately recovered $31,909 in damages from Defendant Allied Van Lines, Inc. and Allied made an offer of judgment for $32,500.00 on March 18, 2022, see ECF Nos. 103, 106-2, the judgment obtained by Plaintiffs is not more favorable than the unacceptable offer. Accordingly, Allied is entitled to recover costs incurred after March 18, 2022, as discussed below.1
a. Which Costs is Allied Entitled to?
The costs that Allied may recover are set out under 28 U.S.C. § 1920. See Hobbs v. Alcoa Inc., No. A-04-CA-566 AWA, 2006 WL 8435708, at *4 (W.D. Tex. July 7, 2006), aff’d, 501 F.3d 395 (5th Cir. 2007).2 Section 1920 provides:
A judge or clerk of any court of the United States may tax as costs the following: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
Allied claims that it incurred the following costs after March 18, 2022:
1. $4,578.05 for deposition transcripts of Plaintiff Linda and Michael Arnold;
2. $1,700.00 for video depositions of Plaintiffs Linda and Michael Arnold;
3. $66.00 for deposition exhibits for depositions of Linda and Michael Arnold;
4. $3,111.54 for trial exhibit notebooks for trial;
5. $4,604.06 in expert witness fees for inspection and travel;
6. $4,077.96 in expert witness fees for trial testimony and travel.
ECF No. 106 at 4–5. In support of its motion, Allied submits receipts documenting these costs. ECF Nos. 106-3, 106-4, 106-5, 106-6, 106-7; 106-8.
i. Deposition Transcripts & Video Depositions
[6] [7] [8] [9] [10]“Video depositions and written deposition transcripts are taxable costs under § 1920(2) so long as they are ‘necessarily obtained for use’ in a case.” Cinemark Holdings, Inc. v. Factory Mut. Ins. Co., No. 4:21-CV-00011, 2024 WL 964723, at *4 (E.D. Tex. Mar. 6, 2024) (quoting Gibson Brands, Inc. v. Armadillo Distrib. Enters., Inc., No. 4:19-cv-00358, 2023 WL 2899050, at *4 (E.D. Tex. Apr. 11, 2023)). Costs related to the taking of depositions are allowed under § 1920(2) “if the materials were necessarily obtained for use in the case.” 28 U.S.C. § 1920(2); Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 536 (5th Cir. 1999). “[A] deposition need not be introduced into evidence at trial in order to be necessarily obtained for the use in the case.” Fogleman v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991) (quotations omitted). In addition, copies of depositions are allowed if they were necessarily obtained for use in a case pursuant to § 1920(4). Gaddis v. United States, 381 F.3d 444, 456 (5th Cir. 2004). Whether a deposition or copy was necessarily obtained for use in the case is a factual determination to be made by the district court. Fogleman, 920 F.2d at 285–86. However, “the Court does not generally award costs for both transcripts and videos unless the videos were actually used at trial.” Two–Way Media, LLC v. AT&T Servs., Inc., No. SA-09-CA-00476-OLG, 2013 WL 12090356, at *3 (W.D. Tex. Nov. 22, 2013).
[11] [12]Here, the Court concludes that while the deposition transcripts obtained for Michael and Linda Arnold were necessary for use in the case, the video deposition costs were not necessary and are unrecoverable. At the time the deposition transcripts were ordered, Allied’s counsel could have reasonably anticipated using the transcripts in preparing its motion for summary judgment or in preparing for trial. Accordingly, the Court will award Allied’s deposition transcript costs. Two–Way Media, 2013 WL 12090356, at *3 (“Deposition costs are generally allowed if the taking of the deposition is shown to have been reasonably necessary in the light of facts known to counsel at the time it was taken.”). However, given that the video deposition was not used at trial and that the Court is already awarding costs for deposition transcripts, the Court will not award video deposition costs. See id.3
ii. Deposition Exhibits
*5 [13] [14]With respect to the deposition exhibit costs sought by Allied, “[c]ourts routinely permit the award of exhibit costs, finding that a party has a reasonable expectation that the depositions, as well as their associated exhibits, would be used for trial preparation.” Sois v. Crescent Drilling & Prod., Inc., No. SA-19-CV-01194-FB, 2023 WL 8707421, at *5 (W.D. Tex. Oct. 19, 2023), report and recommendation adopted sub nom. Solis v. Crescent Drilling & Prod., Inc., No. CV SA-19-CA-1194-FB, 2023 WL 8704782 (W.D. Tex. Dec. 15, 2023). Here, the Court has already found that the deposition transcripts were necessarily obtained for use in this case, and similarly finds that Allied could have reasonably expected to use the depositions and the associated exhibits in preparation for trial. Accordingly, the Courts will award deposition exhibit costs to Allied.
iii. Trial Exhibit Notebooks
[15]Section 1920(4) permits the court to tax as costs “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.” See also Charles v. Sanchez, No. EP-13-CV-00193-DCG, 2015 WL 11439074, at *13 (W.D. Tex. Oct. 7, 2015). Indeed, the losing party “should be taxed for the cost of reproducing relevant documents and exhibits for use in the case.” Fogleman, 920 F.2d at 286. However, to recover these costs, Allied must demonstrate that “the copies were necessarily incurred for use in the case.” Graves for & on Behalf of W.A.G. v. Toyota Motor Corp., No. 2:09CV169KS-MTP, 2012 WL 13018892, at *7 (S.D. Miss. Apr. 27, 2012) (citing Fogleman v. ARAMCO, 920 F. 2d 278, 286 (5th Cir. 1991)).
[16]Here, Allied contends, without any additional argument, that its costs for the trial exhibit notebooks were “for necessary use at trial.” ECF No. 106-1 ¶ 7. In response, Plaintiffs argue that such costs were not reasonable as “all parties’ trial exhibits were filed and submitted to the court electronically.” ECF No. 107 at 2. Allied did not file a reply to Plaintiffs’ response. The Court declines to award $3,111.54 in costs to Allied for its trial exhibit notebooks given the electronic submissions.
iv. Expert Witness Fees
Allied seeks recovery of $4,604.06 in expert witness fees for inspection and travel as well as $4,077.96 in expert witness fees for trial testimony and travel. “The Supreme Court has explained that the interrelation of Fed. R. Civ. P. 54(d)(1) (relating to costs other than attorneys’ fees), 28 U.S.C. § 1920 (listing “costs” that may be taxed by a federal court), and 28 U.S.C. § 1821 (authorizing per diem and travel expenses for witnesses) means that expert witness fees in excess of the standard witness per diem and travel allowances cannot be taxed in the absence of express statutory authority to the contrary.” Tyler v. Union Oil Co. of California, 304 F.3d 379, 404 (5th Cir. 2002); see also Roberts v. Baptist Healthcare Sys., LLC, No. 1:20-CV-00092-MAC, 2023 WL 5163374, at *6 (E.D. Tex. June 29, 2023) (“Expert witness fees are not recoverable unless they are court-appointed expert witnesses.”), report and recommendation adopted, No. 1:20-CV-92, 2023 WL 4678545 (E.D. Tex. July 21, 2023). Here, Allied does not identify any statutory authority warranting the recovery of its expert witness fees beyond 28 U.S.C. § 1920. Thus, the Court will limit the taxable costs to those allowances set forth under 28 U.S.C. § 1821.
To begin, 28 U.S.C. § 1821(a)(1) limits its scope to a witness’s appearance in court or at a deposition. Under 28 U.S.C. § 1821(b), “[a] witness shall be paid an attendance fee of $40 per day for each day’s attendance,” and “[a] witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.” In addition, 28 U.S.C. § 1821(c)(4) permits the award of “[a]ll normal travel expenses within and outside the judicial district.” In addition, under 28 U.S.C. § 1821(d)(1), “[a] subsistence allowance shall be paid to a witness when an overnight stay is required at the place of attendance because such place is so far removed from the residence of such witness as to prohibit return thereto from day to day.” And pursuant to 28 U.S.C. § 1821(d)(2)–(3), that subsistence allowance is to be set at the per diem rate for official travel in the area of attendance by employees of the Federal Government. Currently, the rates for San Antonio are $64 for a full day and $48 for the first and last day of travel. Further, the government daily lodging rate for San Antonio is $143.4
*6 [17]First, with respect to the $4,604.06 sought by Allied for its expert’s inspection and travel costs, Allied seeks to recover those costs associated with its expert’s inspection of Plaintiffs’ damaged Items, not for its expert’s appearance at a deposition or before the Court. As stated above, 28 U.S.C. § 1821(a)(1) limits the section’s scope to a witness’s appearance before a court or at a deposition. Accordingly, the Court declines to award costs for the expert’s inspection and travel.
[18] [19] [20] [21]Second, with respect to the $4,077.96 in expert witness fees for trial testimony and travel sought by Allied, the Court will award witness fees for the expert’s travel to and appearance at trial, as guided by 28 U.S.C. § 1821. All in, Allied’s expert committed four (4) days to the trial in this case, including two days in the courtroom5 and two days of travel time. ECF No. 106-8. In addition, Allied’s expert incurred $897.96 for airfare and $230.00 for food/transportation expenses.6 However, despite testifying during trial that he lives in Arizona, Allied’s expert did not bill for any hotel expenses and thus the Court will not award any allowance for daily lodging. Accordingly, the Court awards $897.96 for airfare, $160 for Allied’s expert’s attendance, and $224 in subsistence allowance.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiffs’ application for attorney’s fees (ECF No. 105). The Court GRANTS IN PART Defendant’s motion to award costs (ECF No. 106). Defendant is entitled to $4,578.05 in deposition transcript costs, $66.00 in deposition exhibit costs, and $1,281.96 in witness fees.
It is so ORDERED.
— F.Supp.3d —-, 2024 WL 3063113
Footnotes
- The Court, of course, observes that Allied did not file a bill of costs along with its Rule 68 motion. However, the Court had not yet ruled on whether Allied was entitled to costs under Rule 68. In addition, “Rule 68 is mandatory and leaves no room for court discretion.” Hobbs, 2006 WL 8435708, at *4.
- “The costs included in Rule 68 are no more extensive than the costs authorized under Rule 54(d), and in each instance the cost award should be based on 28 U.S.C.A. § 1920.” Wright & Miller, 12 Fed. Prac. & Proc. Civ. § 3006 at n.15 (3d ed.) (citing Thomas v. Caudill, 150 F.R.D. 147 (N.D. Ind. 1993)).
- Plaintiffs do not dispute that the deposition transcripts were necessarily obtained for use in the case. See ECF No. 107.
- https://www.gsa.gov/travel/plan-book/per-diem-rates.
- Allied’s expert offered one day of trial testimony and spent one day on standby in case he was needed. See ECF No. 106-8.
- Allied’s expert does not itemize his costs for food or transportation. Accordingly, though 28 U.S.C. § 1821(c)(4) authorizes the award of “[a]ll normal travel expenses within and outside the judicial district,” the Court in its discretion construes these food/transportation expenses as falling under the per diem rates set by 28 U.S.C. § 1821.
End of Document
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