Petition for Writ of Certiorari — Charles L. Burgett, Petitioner v. The General Store No. Two Inc., et al.

7466

NO.

IN THE SUPREME COURT OF THE UNITED STATE!

supreme court, u.s:—

FILED

MAR 1 2 2021

Charles L. Burgett - Petitioner

OFFICE OF THE Cl FRkr

VS.

The General Store No. Two Inc., d/b/a/ Marsh's Sunfresh Market, et al. - Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Charles L. Burgett

P.O. Box 24826

Kansas City, MO 64131

Telephone: (816) 521-0339

PRO SE PETITIONER

RECEIVED

MAR 1 6 2021

9,^°ffcJqhuerctl5rsk

1

QUESTIONS PRESENTED

1. Whether a party wavies costs if it does not file a bill of cost on time pursuant to

local rules?

2. Whether a district court should consider a party's indigency or inability to pay

in awarding costs?

3. Whether the law precludes recovery of both stenographic and videographic

deposition costs?

4. Whether the law allows a district court to award duplicate costs to the parties?

5. Whether a party needs to provide adequate detail regarding copy costs to be

awarded those costs?

11

LIST OF PARTIES

All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

Petitioner, Charles L. Burgett was Appellant/Plaintiff below. Respondents, who

were appellees/defendants below, are the General Store No. Two Inc., during

business as Marsh’s Sunfresh Market; W.S.C. Services Inc., Andrei Florea; and,

police officers Thomas Bethel, Terry Grimmett, and Matthew Payne.

!

Ill

TABLE OF CONTENTS

OPINION BELOW

1

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

.2

STATEMENT OF THE CASE

2

REASONS FOR GRANTING THE WRIT

7

CONCLUSION

16

INDEX TO APPENDICES

APPENDIX A: Decision of United States Court of Appeals for the Eighth Circuit

la

3a

APPENDIX B: Decision of United States District Court WDMO

APPENDIX C: Decision of United States Court of Appeals Denying Rehearing

and Rehearing En Banc

6a

APPENDIX D: Objections to Bill of Costs

7a

APPENDIX E: Motion to Retax Costs

10a

APPENDIX F: Reply Motion to Retax Costs

16a

APPENDIX G: Motion to Strike Brief of Appellee

20a

IV

TABLE OF AUTHORITIES CITED

CASES:

PAGE NUMBER(S):

Atlas Biologicals, Inc. v. Kutrubes, Civil Action No. l:15-cv-00355-CMA-KMT

(D. Colo. Jul. 10, 2020)--------------------------------------------- ---------------------

9

Am. Guar. & Liab. Ins. Co. v. U.S. Fid. & Guar. Co., 2010 WL 1935998, at *2

12

Blitz Telecom Consulting, LLC v. Peerless Network, Inc. Case No: 6:14-cv-307Orl-40GJK (M.D. Fla. Aug. 31, 2016) -------------------------------------------------

11

Borum v. Brentwood Vill., LLC, Civil Action No.: 16-1723 (RC) (D.D.C. Sep. 4,

2020)------------------------------------------------------------------------------------------

10

Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009)---

9

Cherry v. Champion Int'l Corp., 186 F.3d 442, 448-449 (4thCir. 1999)

12

Cowden v. BNSF Railway Co. 991 F.Supp.2d at 1090-91 (2014)

12

Cramer v. Equifax Info. Servs., No. 4:18-CV-1078-SEP (E.D. Mo. Feb. 24, 2020) - 10

Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437 (1987)

9

Eolas Techs. Inc. v. Adobe Sys., Inc. 891 F.Supp.2d at 807 (E.D. Tex. 2012)

15

Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1247-48 (9thCir.2014)

5

Fogleman v. Aramco, 920 F.2d 278 (5th Cir. 1991)

14

Grewal v. Cuneo Gilbert & Laduca LLP, No. 13-cv-6836 (RA) (S.D.N.Y. Oct. 26,

2020)-------------------------------------------------------------------------------------------- 10

In re Paoli R.R. YardPCB Litigation, 221 F.3d 449, 463 (3d Cir. 2000) —-----

10

Lampkins v. Thompson, 337 F.3d 1009, 1017 (8thCir.2003)

5

V

Lift Truck Lease & Service, Inc. v. Nissan Forklift Corporation, North America,

4:12CV153 CAS, 2013 WL 6331578, at *2 (E.D.Mo. Dec. 5, 2013)-------------

12

MEMCElec. Materials, Inc. v. Sunlight Grp., Inc., No. 4:08CV535 FRB, 2012 WL

918743, at *2 (E.D.Mo. Mar. 19, 2012)---------------- -----—-------------------------- 12

11

Morrison v. Reichhold Chemicals, Inc., 91 F .3d 460, 464-65 (11th Cir.1996)

N.O. by Orwig v. About Women Ob/Gyn, P.C., 440 F. Supp. 3d 565, 567-68 (E.D.

Va. 2020)---------------------------------------------------------------------------------------- 10

Phetosomphone v. Allison Reed Group, Inc., 984 F.2d 4,9 (1st Cir. 1993)

8

Poe v. John Deere Co., 695 F.2d 1103, 1108 (8th Cir. 1992)

11

Revalnc. v. Spanfelner, Case No. 19-20664-CIV-MARTINEZ/AOR (S.D. Fla.

Jan. 11,2021)------------------------------------------------------------------------------

9

S.A. Healy Company v. Milwaukee Metropolitan Sewerage District, 60 F.3d 305

(7th Cir. 1995)------------------------- ---------------------------------------—----------

8

Tolan v. Cotton, 572 U.S. —, 134 S. Ct. 1861 (2014)

7

STATUTES AND RULES:

28 U.S.C. § 1920

PAGE NUMBER(S):

12

28 U.S.C. § 1920 (2)

12,14

28 U.S.C. § 1920 (4)

14

Rule 54(d) Federal Rules of Civil Procedure

7,9,10

Local Rule 54.1(a)

4,7,8

1

IN THE SUPREME COURT OF THE UNITED STATES

Charles L. Burgett - Petitioner

vs.

The General Store No. Two Inc., d/b/a/ Marsh's Sunfresh Market, et al. - Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Charles L. Burgett, respectfully prays that a writ of certiorari

issue to review the judgment of the United States Court of Appeals for the Eighth

Circuit in Cause No. 20-1299, entered on October 22, 2020. Rehearing en banc

and panel rehearing was denied December 15, 2020.

This case raises fundamental issues concerning whether Pro Se parties receive

equal justice in the federal court.

OPINION BELOW

On October 22, 2020 a panel of the Court of Appeals entered its affirmance

with opinion the judgment of the United States District Court for the Western

District of Missouri. The affirmance with opinion of the Court of Appeals is

unpublished.

2:

JURISDICTION

The Court of Appeals entered its judgment on October 22, 2020. On December

15, 2020, the Court of Appeals denied the Petitioner’s request for panel rehearing

and rehearing en banc, and a copy of the order denying rehearing appears at

Appendix 6a. Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 1920; and, Rule 54(d) of the Federal Rules of Civil Procedure.

STATEMENT OF THE CASE

A. Factual Background.

On April 6, 2016, Charles L. Burgett brought suit against the named defendants

including the respondents for assault & battery; false arrest & imprisonment;

malicious prosecution; excessive force; and, racial discrimination, which were

directed against some or all of the defendants.

On December 28, 2016, the district court [as an unwarranted sanction] unjustly

dismissed Burgett’s entire civil rights lawsuit with prejudice; and, issued judgment

[no findings were made on the merits]. The district court clerk entered judgment

on the same day from the district court's granting the defendants’ motions to

dismiss.

On December 4, 2019, the district court clerk ordered assessment of costs in

favor of the defendants.

3

B. District Court Proceedings.

On January 16, 2017, defendants W.S.C. Services Inc. and Andrei Florea filed a

Proposed Bill of Costs for $3,545.01 (Doc. #113). The foregoing defendants

claimed, inter alia, $3,336.15 for transcripts—videotaped deposition [$1,628.00]

and stenographic transcripts [$1,708.15] (Doc. ##113, P. 1; 113-1, PP. 5-8).

On January 18, 2017, defendant the General Store No. Two Inc. filed a

Proposed Bill of Costs for $1,998.24 (Doc. #114). The preceding defendant

claimed $1,704.84 for the stenographic transcripts (Doc. ##114, 114-1, PP. 2-3),

which defendant's counsel claimed was defendant's share (Doc. #126, P. 3); and,

$293.40 in copying costs. (Doc. ## 114, 114-1, P. 4).

On January 18, 2017, defendants Thomas Bethel, Matthew Payne and Terry

* Grimmett filed other documents but not a Proposed Bill of Cost. (Doc. #115).

On January 30, 2017, Burgett filed objections to defendants’ W.S.C. Services,

Inc. and Andrei Florea (Doc. #117) and, the General Store No. Two Inc. (Doc.

#118) Proposed Bills of Costs; and, defendants' Thomas Bethel, Matthew Payne

and Terry Grimmett non-filing of Bill of Costs (Doc. #119). Burgett stated, inter

alia, "The defendants’ counsel, Lynnette Lockhart did not timely or otherwise “file

a verified bill of costs, upon a form [AO 133] provided by the Clerk” within the

required time of “21 days after entry of final judgment pursuant to Fed.R.Civ.P.

58.

5511

(App. D, P. 7a; Doc. #119, P. 1).

4‘

On December 4, 2019, the district court clerk ordered assessment of costs for all

the defendants over the objections of Burgett. (Doc. #142).

On December 11, 2019, Burgett filed a Motion to Retax Costs (App. E, PP. 10a15a; Doc. #143); and, filed a Reply to defendants' opposition on January 7, 2020

■

(App. F, PP. 16a-19a, Doc. #146). Defendants Thomas Bethel, Matthew Payne

and Terry Grimmett did not oppose Burgett's Motion to Retax Costs. (App. F, P.

18a; Doc. #146, P. 3). Burgett reiterated, "[t]he foregoing defendants waived the

purported bill of costs because, “a verified bill of costs [was not timely filed], upon

a form [AO 133] provided by the [c]lerk”, pursuant to Local Rule 54.1(a). See

Doc. #119, P. 1. The [district] court should vacate the award of costs." (App.

E, P. 1 la; Doc. #143, P. 2).

Regarding, defendants W.S.C. Services Inc. and Andrei Florea—Burgett

requested the district court to vacate the award of costs because incurred costs were

unnecessary, duplicate and unreasonably high. Burgett stated that the defendants'

counsel noticed Burgett for a video deposition not a video and stenographic

, deposition. (App. F, P. 16a; Doc. #146, P. 1; Doc. #60). Therefore, costs can only

be claimed for the videotaping and not the stenographic deposition. (Id; App. E, P.

11a; Doc. #143, P. 2). Burgett asserted that the costs for invoice (Doc. #113-1, P.

8) [show balance due]; and, the defendants' counsel continues not to provide any

proof (e.g., cancelled checks) that the invoices (Doc. #113-1, PP. 5-8) were paid.

5

In fact, the invoices (Doc. #113-1, PP. 5-8) show that the costs were billed to

Nationwide Insurance Company not the defendants. (App. E, P. 11a; Doc. #143,

P. 2; App. F, PP. 16a-17a; Doc. #146, PP. 1-2).

Concerning, the General Store No. Two Inc., Burgett also requested the district

court to vacate the award of costs for this defendant because incurred costs were

unnecessary, duplicate and unreasonably high. Burgett, inter alia, averred the

costs for the stenographic transcripts were not necessarily incurred; the transcripts

established a duplicate cost; and, the costs for (Doc. # 114-1, PP. 2-3) were not

. paid [invoices show balance due (Id.; Doc. #118, P. 1)]—there is no proof of

payment or obligation to pay the costs. (App. E, P. 11a; Doc. #143, P. 2; App. F,

PP. 18a; Doc. #146, P. 3). Burgett further averred that defendant’s counsel did not

identify what was copied and why the copying was necessary for the case (Doc.

#114-1, P. 4). (App. E, P. 11a; Doc. #143, P. 2; App. F, PP. 18a; Doc. #146, P. 3).

In regards to all defendants, Burgett asserted,

"[t]he [district] court should vacate the award of costs because

Burgett is indigent and is unable to pay any of the assessed costs.

Lampkins v. Thompson, 337 F.3d 1009, 1017 (8thCir.2003). See Affidavit

of Assets, Income and Expenses, Exhibit 1 [App E, PP. 14a-15a, Doc.

143-1, PP. 1-2]. The court should vacate the award of costs because

the award is inequitable under the circumstances. Imposing an

award of $7,248.09 costs when Burgett is indigent and has an inability

to pay would be inequitable. See id. Additionally, imposing costs on

indigent civil rights plaintiffs [like Burgett] who cases that were

dismissed with prejudice [not on the merits] will have a chilling effect

on future similar actions. Escriba v. Foster Poultry Farms, Inc., 743

F.3d 1236, 1247-48 (9thCir.2014). (App. E, P. 12a; Doc. #143, P. 3)."

6

On January 13, 2020, the district court denied Burgett's Motion to Retax Costs

‘

and awarded costs against him. The district court awarded $3,282.15—videotaped

deposition [$1,610.00] and stenographic transcripts [$1,672.15] to defendants’

W.S.C. Services, Inc. and Andrei Florea; $1,998.24—stenographic transcripts

[$1,704.84] and copying costs [$293.40] to defendant the General Store No. Two

Inc.; $1,704.84—stenographic transcripts to defendants Thomas Bethel, Matthew

Payne and Terry Grimmett [none of who opposed Burgett's Motion to Retax

Costs]. (App. B, P. 5a; Doc. #149).

C. The Court of Appeals’ Opinion.

The court of appeals entered its affirmance with opinion the judgment of the

district court; and, denied Burgett's Motion to Strike Brief of Appellee The General

Store No. Two Inc. (App. G, PP. 20a-21a). (App. A, PP. la-2a).

D. The Court of Appeals’ Denial of Panel Rehearing and Rehearing En

Banc.

The court of appeals denied rehearing and rehearing en banc. App. 6a.

7

REASONS FOR GRANTING THE WRIT

The Decision Below Violates The Discretionary Authority Found In Rule

54(d), Conflicts With This Court’s And The Standard Employed By Other

Courts, And Sets A Serious Precedent That Will Undermine The Public’s

Perception Of The Right For A Pro Se Party To Receive Equal Justice In The

Federal Court, Which Calls For An Exercise Of This Court’s Supervisory

Power.

I. This Court Will Intervene When A Lower Court Ignores or

Misapprehends Factual Issues.

\

The Eighth Circuit severely misapplied the facts to the detriment of Petitioner

and unjustly affirmed the award of costs against him. This Court has granted

review to correct a lower courts mishandling of factual issues. Tolan v. Cotton,

572 U.S.

134 S. Ct. 1861 (2014).

II. The Eighth Circuit’s Decision Conflicts With This Court, Other Courts

Of Appeals, And What It Has Applied In Its Own Circuit On Awarding

Costs; And, Sanctioned The Departure From Accepted And Usual Course Of

Judicial Proceeding Of The District Court.

A. Bethel, Grimmett and Payne failed to timely file bill of costs.

The Eighth Circuit overlooked that the foregoing defendants did not timely file

a verified bill of costs, pursuant to the district court's Local Rule 54.1(a).

8

The deadline to file a bill of costs is governed by local rules. S.A. Healy

Company v. Milwaukee Metropolitan Sewerage District, 60 F.3d 305 (7th Cir.

1995). The district court's Local Rule 54.1 (a)l states in pertinent part, "A party

seeking an award of costs must file a verified bill of costs, on the form provided

by the Clerk [AO 133], no later than 21 days after entry of final judgment under

Fed. R. Civ. P. 58." Final judgment was entered on December 28, 2016 and

defendants—Bethel, Grimmett and Payne did not "file a verified bill of costs .. .

no later than 21 days [January 18, 2017] after entry of final judgment." No

Proposed Bill of Cost was filed on January 18, 2017 by defendants—Bethel,

Grimmett and Payne. See Doc. #115. The use of the word, "must" in Local Rule

54.1(a) imposed a mandatory legal obligation on defendants—Bethel, Grimmett

and Payne to file their verified bill of costs on or before January 18, 2017. The

defendants—Bethel, Grimmett and Payne did not file their bill of costs on time;

therefore, they waived the recovery of costs. The First Circuit Court disallowed

costs in the case because plaintiffs did not timely file bill of costs. Phetosomphone

v. Allison Reed Group, Inc., 984 F.2d 4,9 (1st Cir. 1993).

The district court clerk wrongly ordered assessment of costs. In turn, the

district court abused its discretion and improperly ordered award of costs. In

turn, the Eighth Circuit overlooked the district court's abusive course and

sanctioned the district court's order awarding costs.

9

B. The district court Did Not consider Petitioner's indigency and inability to

payThe Eighth Circuit ignored the law requiring the district court to consider

Burgett's indigency in awarding costs. The district court's underlying factual

findings on alleged willfulness and prejudice were biased and clearly erroneous;

and, the district court's order of dismissal was an abuse of discretion. District

court judge Bough dismissed Burgett’s claims under the pretext that he disregarded

court rules. The dismissal was merely a disguise to aid the defendants in violating

Burgett's civil rights and to aid the defendants in escaping liability for engaging in,

inter alia, racist and cowardly conduct against Burgett. The prior panel of the

Eighth Circuit condoned the misconduct of the defense counsel, district judge

Bough, district court staff; and, displayed an unjust focus on African Pro Se

Burgett rather than looking at the totality of circumstances. Burgett is entitled to

an impartial and disinterested tribunal in all cases. Caperton v. A. T. Massey Coal

Co., 556 U.S. 868, 876 (2009).

District Courts have discretion to limit or deny costs—Crawford Fitting Co. v.

J. T. Gibbons, Inc., 482 U.S. 437 (1987); Reva Inc. v. Spanfelner, Case No. 1920664-CIV-MARTINEZ/AOR (S.D. Fla. Jan. 11, 2021); Atlas Biologicals, Inc. v.

Kutrubes, Civil Action No. l:15-cv-00355-CMA-KMT (D. Colo. Jul. 10, 2020)

("Rule 54(d) provides that the cost shall be taxed against the losing party unless the

10

court otherwise directs. ... It is phrased permissively because Rule 54(d) generally

grants a federal court discretion to refuse to tax costs in favor of the prevailing

party."). The district court abused it discretion in not denying costs to the

defendants.

The district court was required to consider Burgett's indigency. See In re

Paoli R.R. Yard PCB Litigation, 221 F.3d 449, 463 (3d Cir. 2000) (recognizing

the most significant factor in determining whether to deny costs is the losing

party’s indigency or inability to pay). See additionally, Grewal v. Cuneo Gilbert

& Laduca LLP, No. 13-cv-6836 (RA) (S.D.N.Y. Oct. 26, 2020) ("Denial of costs is

especially appropriate in light of the fact that, whereas Defendants are a wellestablished law firm and lawyers at that firm, Plaintiff is a pro se litigant who

asserts that she is unemployed and has limited financial resources. Under these

circumstances, it would be significantly more burdensome for Grewal to absorb the

costs."); Borum v. Brentwood Vill., LLC, Civil Action No.: 16-1723 (RC) (D.D.C.

Sep. 4, 2020)(Courts may consider financial hardship when awarding costs). Some

courts have denied costs outright based on inability to pay. See, e.g., N.O. by

Orwig v. About Women Ob/Gyn, P.C., 440 F. Supp. 3d 565, 567-68 (E.D. Va.

2020) (declining to award costs due to plaintiffs inability to pay and ongoing

medical bills); Cramer v. Equifax Info. Servs., No. 4:18-CV-1078-SEP (E.D.

Mo. Feb. 24, 2020) ("A losing party's indigency is a factor the court should

11

consider when determining whether to tax costs, and is a valid reason for not

awarding them." Id. (citing Lampkin v. Thompson, 337 F.3d 1009, 1017 (8th Cir.

2003), Poe v. John Deere Co., 695 F.2d 1103, 1108 (8th Cir. 1992))").

Burgett is, in fact, indigent as demonstrated by Doc. #143-1 (App. E, PP.

14a-15a); Burgett has an inability to pay; and, the district court order of costs

is inequitable. The district court abused its discretion, which was unjustly

affirmed by the Eighth Circuit.

C. The district court improperly awarded costs to W.S.C. Services, Inc. and

Andrei Florea for both a videotaped deposition and stenographic transcript.

The Eighth Circuit ignored that the above defendants' counsel noticed Burgett

for a video deposition not a video and stenographic deposition. The Eighth Circuit

misapprehended the law—no costs should be recoverable for both a videotaped

deposition and stenographic transcript.

Since the defendants' counsel—W.S.C. Services, Inc. and Andrei Florea noticed

Burgett only for a video deposition, costs can only be claimed for the videotaping

and not the stenographic deposition. Blitz Telecom Consulting, LLC v. Peerless

Network, Inc. Case No: 6:14-cv-307-Orl-40GJK (M.D. Fla. Aug. 31, 2016) (costs

of conducting the deposition in the manner noticed are recoverable); Morrison v.

Reichhold Chemicals, Inc., 97 F.3d 460, 464-65 (11th Cir .1996). Additionally, no

costs should be recoverable for both a videotaped deposition and stenographic

12

transcript. Cherry v. Champion Int'l Corp., 186 F.3d 442, 448-449 (4thCir.l999).

Governing case law makes it clear that 28 U.S.C. § 1920(2) precludes recovery of

both stenographic and videographic deposition costs [Fees for printed or

electronically recorded transcripts (28 U.S.C. § 1920(2)]. Travelers Indem. Co. of

Conn. v. Attorney's Title Ins. Fund, Inc., Case No: 2:13-cv-670-FtM-38CM (M.D.

Fla. Jan. 14, 2019) ("[f]ees for printed or electronically recorded transcripts" are

recoverable); Cowden v. BNSF Railway Co. 991 F.Supp.2d at 1090-91 (2014); Lift

Truck Lease & Service, Inc. v. Nissan Forklift Corporation, North America,

4:12CV153 CAS, 2013 WL 6331578, at *2 (E.D.Mo. Dec. 5, 2013) (finding “ §

1920(2) precludes the recovery of the cost of both a stenographic transcript and

video of the same deposition”); MEMC Elec. Materials, Inc. v. Sunlight Grp.,

Inc., No. 4:08CV535 FRB, 2012 WL 918743, at *2 (E.D.Mo. Mar. 19, 2012) (“[I]t

would be contrary to § 1920's plain language to allow MEMC to recover costs for

both stenographic and video costs for [certain] depositions.”); Am. Guar. & Liab.

Ins. Co. v. U.S. Fid. & Guar. Co., 2010 WL 1935998, at *2 (“The ordinary usage

of the word ‘or’ is disjunctive, indicating an alternative.... [I]t would be contrary to

the plain language of § 1920 to allow Defendants to recover costs for both

stenographic transcripts and video costs for the same depositions.”).

The Eighth Circuit wrongly affirmed the district court's abuse of discretion

in ordering costs.

13

D. The district court unjustly awarded duplicate transcript costs to the

defendants.

From the outset, the Eighth Circuit disregarded that attorney Ryan Edward

Karaim for General Store No. Two Inc. did not timely enter his appearance as

required. No attorney licensed to practice in the Eighth Circuit jurisdiction had

entered an appearance on behalf of appellee, The General Store No. Two Inc. and

appellee were in default. (App. G, PP. 20a-21a, Doc. # 4915293, PP. 1-2). The

foregoing appellee's brief should have been struck from the record; however, the

Eight Circuit denied Burgett's Motion and granted Ryan Edward Karaim attorney

privilege. Notwithstanding, the Eighth Circuit distorted the facts and

misinterpreted the law—the foregoing defendant and the other defendants did not

submit evidence that the costs for the stenographic transcripts were not duplicative

nor did defendants submit evidence that they paid the costs.

The bill for stenographic transcript - Doc. #113-1, P.6 [defendants W.S.C.

Services, Inc. and Andrei Florea] shows 336 pages at $4.25 equals $1,428.00 plus

27 exhibits at .20 equals $5.40 for a total of [$1,433.40]; Doc. #114-1, P.2

[defendant the General Store No. Two Inc.] shows [$1,534.89]; and, Doc. #115-2

[defendants Bethel, Grimmett and Payne] shows [$1,534.89] all of which are for

the same deposition that occurred on October 26, 2016—Duplicate Costs. The

foregoing Doc. ## show that a total of four transcripts were billed for $4,963.28.

14

The defendants' counsels billed for four originals rather than for one plus the cost

of copies for the other three. Under 28 U.S.C. § 1920(4), the expense of copying a

depositions may be taxed as cost only if the copies were "necessarily obtain for use

in the case [and the copies were not necessarily obtained]." Fogleman v. Aramco,

920 F.2d 278 (5th Cir. 1991)(costs of original depositions and copies are

recoverable under 28 U.S.C. § 1920(2) and § 1920(4) respectively). The three

copies [1008 pages] should have been billed at the copy rate not as original.

Likewise, the bills for stenographic transcripts - Doc. #113-1, P.8 [$125.60]; #1141, P.3 [$169.95]; and, #115-3 [$169.95]) are for the same "statement on the record"

of November 1, 2016—Duplicate Costs. Copy expense for two of the transcripts

should have been billed under 28 U.S.C. § 1920(4). Although, Burgett's argues,

inter alia, that no stenographic deposition was noticed, the appellees excessively

billed beyond the copy expense cost for the October 26, 2016 deposition and

November 1, 2016 "statement on the record". The district court egregiously

abuse its discretion in awarding duplicate costs, which was unjustly

sanctioned by the Eighth Circuit.

It is a fact that the costs for invoice (Doc. #113-1, P. 8) shows balance due;

and, the defendants' counsel—W.S.C. Services, Inc. and Andrei Florea has not

provided any proof (e.g., cancelled checks) that the invoices (Doc. #113-1, PP. 58) were paid. In fact, the invoices (Doc. #113-1, PP. 5-8) show that the costs were

15

billed to Nationwide Insurance Company not the defendants. Likewise, it is a fact

that the costs for (Doc. #114-1, PP. 2-3) shows balance due. The defendant's

counsel—the General Store No. Two Inc. has not to provided any proof

(e.g., cancelled checks) that the invoices were paid.

The Eighth Circuit wrongly affirmed the district court's abuse of discretion

in awarding costs.

E. The district court improperly awarded the General Store No. Two Inc.

copying costs.

The Eighth Circuit overlooked that the above-mentioned defendant provided

inadequate detail regarding the copying costs. The documentation provided by the

defendant's counsel—the General Store No. Two Inc. for copy costs merely

indicate that photocopies were made. See Doc. #114-1, P.4 (“110.011 05/19/2016

2A 4 0.500 4.00 Photocopy expense (8 color copies @ 0.50)"). The defendant’s

counsel did not identify what was copied and why the copied documents were

necessary for the case. The providing of inadequate detail regarding the copying

costs is inconsistent with case law. See for example Eolas Techs. Inc. v. Adobe

Sys., Inc. 891 F.Supp.2d at 807 (E.D. Tex. 2012).

This Court should uphold the guarantee of Equal justice for all (Equal

justice under law) as engraved on the West Pediment, above the front

entrance of the United States Supreme Court building— approved by

16

Supreme Court Chief Justice Charles Evans Hughes Sr. (1930-1941), and

Associate Justice Willis Van Devanter (1911-1937).

This Court is symbolic of our entire judicial system. This case presents the

opportunity for the Court to exercise its Supervisory Power to guarantee the

fundamental principles of fairness is untarnished; and, to secure the public’s

perception of the right of a pro se party to receive equal justice in the Federal

Court.

CONCLUSION

For the foregoing reasons, the Petition for Writ of Certiorari should be granted.

Dated: March 12, 2021

Respectfully Submitted,

P.O. Box 24826

Kansas City, Missouri 64131

Telephone: (816) 521-0339

Pro Se Petitioner