The opinion
United States District Court
District of Massachusetts
)
Sara Caruso, )
)
Plaintiff, )
)
v. ) Civil Action No.
) 20-10180-NMG
Delta Air Lines, Inc., )
)
Defendant. )
)
MEMORANDUM & ORDER
GORTON, J.
This case arises out of claims brought by Sara Caruso
(“Caruso” or “plaintiff”) that her employer, Delta Air Lines
(“Delta” or “defendant”), violated both state and federal law
by: (1) discriminating against her based on sex and disability
stemming from an alleged sexual assault, (2) retaliating against
her, (3) interfering with her rights, and (4) aiding and
abetting the alleged assailant. This Court allowed summary
judgment in favor of Delta on all claims in March, 2022 and
Caruso subsequently appealed the decision to the First Circuit
Court of Appeals. That appeal remains pending. Before this
Court, however, is Caruso’s motion for the disallowance of
certain costs identified in defendant’s bill of costs.
I. Motion for Disallowance of Costs
Delta filed a Bill of Costs in April, 2022 seeking
$24,639.86 from Caruso pursuant to Fed. R. Civ. Proc. 54(d)(1)
and 28 U.S.C. § 1920. That bill, according to Delta, consists
of $488 in clerk fees, $2,665 in fees for service of summons and
subpoenas, and $21,487 in fees associated with printed or
electronically recorded transcripts necessarily obtained for use
in the litigation.
Caruso has challenged the ability of Delta to recover some
of those costs, specifically the costs for: (1) deposition
transcripts that were not put into evidence, (2) the
videorecording of depositions, (3) private process services and
(4) the transcript of the hearing on Delta’s motions to compel.
Caruso’s motion is untimely because it was filed a few days
after the expiration of the time allowed to submit an opposition
to a bill of costs.1 Nevertheless, Caruso’s arguments are well-
1 In its opposition to the pending motion, Delta contends
that the motion was untimely because Caruso filed it 15 days
after Delta filed its bill of costs and the time allowed,
pursuant to Local Rule 7.1(b)(2), is 14 days. However, as set
forth in the local rules and procedures, a motion for
disallowance must be made within 10, rather than 14, days after
a bill of costs is filed with the Court. See Taxation of Costs,
(available at
https://www.mad.uscourts.gov/resources/pdf/taxation.pdf). The
pending motion is thus even more untimely than Delta argued.
The irony is, however, that according to those local rules,
which Delta cites for other purposes, any opposition to a motion
for disallowance of costs is due five days after of the original
taken and her marginal untimeliness will be excused under the
circumstances.
A. Legal Standard
Federal Rule of Civil Procedure 54(d)(1) provides that:
[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.
Fed. R. Civ. P. 54(d)(1). That rule creates 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). The presumption is subject, however, to “the
broad discretion” of the district court. Trustees of Bos. Univ.
v. Everlight Elecs. Co., 392 F. Supp. 3d 120, 134 (D. Mass.
2019), aff'd, 838 F. App'x 565 (Fed. Cir. 2021) (citation
omitted).
Recovery pursuant to Rule 54(d)(1) is governed by 28 U.S.C.
§ 1920. Section 1920 identifies specific expenditures that may
be included in the calculation of the recoverable costs. Those
include, inter alia:
(1) fees of the clerk and marshal [and]
(2) fees for printed or electronically recorded
transcripts necessarily obtained for use in the
case[.]
filing. Id. Delta filed its opposition almost two weeks after
Caruso filed her motion for disallowance and, therefore, the
filings of both parties were late.
28 U.S.C. § 1920. Courts may not award costs for expenditures
beyond those specifically enumerated in Section 1920. See
Greater New York Mut. Ins. Co. v. Lavelle Indus., Inc., No. 13-
cv-10164-MBB, 2017 WL 1496914, at *1 (D. Mass. Apr. 25, 2017);
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 444-45
(1987).
B. Application
1. Deposition Transcripts
The first set of costs challenged by Caruso is that which
was accrued in the production of deposition transcripts,
specifically the 10 depositions of Delta’s employees and the
seven depositions that were not referred to in its motion for
summary judgment. There is a distinction to be noted.
Concerning the costs associated with the depositions of
Delta employees, Caruso has the stronger argument.
Courts in this district generally have held that
parties cannot recover the costs of their own
deposition transcripts. The theory behind this
prohibition is that such a transcript is only for the
convenience of counsel or discovery purposes
Palomar Techs., Inc. v. MRSI Sys., LLC, No. CV 18-10236-
FDS, 2020 WL 4938414, at *5 (D. Mass. Aug. 12, 2020),
appeal withdrawn, No. 2020-1913, 2020 WL 7382538 (Fed. Cir.
Dec. 15, 2020) (quoting, in part, Trustees of Bos. Univ.,
392 F. Supp. 3d at 136). Defendant rebuts that reasoning
with the contention that the depositions were necessary
because most of the deposed Delta employees are residents
of Georgia and thus beyond this Court’s subpoena power.
That argument is unconvincing because current Delta
employees are necessarily responsive to the directions of
their employer. The Court will therefore deny Delta the
costs associated with the deposition transcripts of its
employees, specifically Amy Broach, Emma Brown, James
Lucas, Victoria Mercer, Barry Coburn, Bryan Dickerson,
Amanda Evanson, Lisa Stephan, Larry Sharp and Nicole
Warner.
There were five remaining witnesses: Christine Caruso,
Charles Caruso, John McNair, John Murray and Sara Caruso. Of
those, the first three were irrelevant to Delta’s motion for
summary judgment. As a result, the costs associated with those
transcripts are not recoverable. See Haemonetics Corp. v.
Fenwal, Inc., 863 F. Supp. 2d 110, 117 (D. Mass. 2012), and
cases cited.
That leaves the costs arising from the depositions of Ms.
Sara Caruso and Mr. Murray.
Upon showing that a deposition was necessary, a
prevailing party is only entitled to recover the cost
of one original copy and one certified copy of that
transcript.
Palomar Techs., Inc., at *4 (citing Brigham and Women's
Hospital, Inc. v. Perrigo Co., 395 F. Supp. 3d 168, 173 (D.
Mass. 2019) (“For each recoverable deposition transcript,
defendants shall recover the actual transcript cost and, if
applicable, the reporter attendance fee.”). Examining the
relevant invoices, such costs are limited to $554 for the
deposition of Murray and $2,292 for the deposition of Sara
Caruso. Delta is entitled to recover those costs.
Delta will accordingly be awarded recoverable costs of
$2,847 for the deposition transcripts.
2. Deposition Videos
The second set of costs that Caruso disputes is that which
Delta accrued by obtaining video deposition transcripts of Mr.
Lucas, Mr. McNair and Ms. Sara Caruso. For the reasons
discussed supra, the costs associated with the deposition of Mr.
Lucas are not recoverable. With respect to the other two,
however, Delta argues that the videos were necessarily obtained
for impeachment purposes. Because Delta has offered at least
some explanation for the necessity of the videotaped
depositions, see McIntyre v. Rentgrow, Inc., No. 18-CV-12141-
ADB, 2021 WL 4776643, at *2 (D. Mass. Oct. 13, 2021), and cases
cited, the Court will allow Delta to recover those costs in the
amount of $2,111.
3. Private Process Servers
Caruso also objects to the expenditures Delta seeks to
recover associated with private process servers. Section 1920
expressly allows the prevailing party to recoup the fees of the
marshal. 28 U.S.C. § 1920(1). Parties are permitted to use
private process servers in lieu of the marshal but recovery is
limited to the equivalent of the marshal’s fee. Palomar Techs.,
Inc., at *3. At present, the cost of service of process by
marshal is set at
$65 per hour (or portion thereof) for each item served
by one U.S. Marshals Service employee, agent, or
contractor, plus travel costs and any other out-of-
pocket expenses.
28 C.F.R. § 0.114. As is the custom, this Court will assume
that each service of process——21 in all——for which Delta seeks
recovery would have taken one hour. Palomar Techs., Inc., at *3.
As such, Delta may recover a total of $1,365. To award the
additional fees accrued from using private process servers, to
whom Delta paid extra for expedited service in nearly all
instances, would be excessive. Keurig, Inc. v. JBR, Inc., 2014
WL 2155083, *2 (D. Mass. May 21, 2014).
4. Hearing Transcript
Finally, Caruso asserts that the costs to produce a
transcript from the hearing on Delta’s motion to compel (Docket
No. 48) is recoverable.
In the analogous context of deposition transcripts,
the First Circuit has held that deposition transcripts
are taxable if they are introduced as evidence, used
at trial, or where special circumstances warrant it.
Palomar Techs., Inc., at *3 (quoting 600 LB Gorillas, Inc. v.
Fieldbrook Foods Corp., 2018 WL 6332494, at *4 (D. Mass. Dec. 4,
2018)). Delta argues that the transcript was necessarily
obtained because Caruso initially withheld relevant documents
and it was thus necessary for Delta to retake her deposition on
a limited basis. Based upon that explanation, the Court will
allow Delta to recover the cost of $93 for that transcript. Due
to the temporal proximity between the hearing on that motion to
compel and the deadline for motions on summary judgment, the
additional fees accrued by Delta to expedite the production of
the transcript are recoverable.
ORDER
For the foregoing reasons, the motion of plaintiff for the
disallowance of defendant’s bill of costs (Docket No. 119) is
ALLOWED, in part, and DENIED, in part. Delta’s bill of costs
(Docket No. 118) is ALLOWED in the amount of $6,416 and is
otherwise DENIED.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated July 14, 2022