United States District Court, D. South Carolina, Florence Division
William B. Cox, Personal Representative for the Estate of Robin C. Fleming, Plaintiff,
Duke Energy, Inc., Darlington County Sheriff's Office, Darlington County Sherriff J.W. Byrd, Gary Streett, Joyce C. Everett, and William “Randy” Gideon, Defendants.
ORDER AND OPINION
Howe Hendricks United States District Judge.
matter is before the Court upon Bill of Costs motions filed
by Defendants Duke Energy Inc. (“Duke Energy”)
(ECF No. 172), and J.W. Byrd, Joyce C. Everett, and Gary
Streett (“Sheriff Defendants”). (ECF No. 173.)
The Court entered summary judgment in favor of Defendants on
March 31, 2016. (ECF No. 170.) Duke Energy and the Sheriff
Defendants timely submitted their Bill of Costs in the amount
of $7, 613.38 and $3, 272.20, respectively. (ECF Nos. 172;
173.) Plaintiff filed objections to the Bill of Costs on
April 22, 2016,  (ECF No. 174), to which Duke Energy
responded, (ECF No. 176). For the reasons set forth below,
the Court grants Defendants' request for costs with
to the Federal Rules of Civil Procedure, “costs-other
than attorney's fees-should be allowed to the prevailing
party.” Fed.R.Civ.P. 54(d)(1). As such, there is a
presumption in favor of awarding costs to a prevailing party.
See Teague v. Bakker, 35 F.3d 978, 996 (4th Cir.
1994); see also Cherry v. Champion Int'l Corp.,
186 F.3d 442, 446 (4th Cir. 1999). Accordingly, it is
incumbent upon the unsuccessful party to show circumstances
sufficient to overcome the presumption favoring an award of
costs to the prevailing party. Id. (citing
Teague, 35 F.3d at 996).
overcome the presumption favoring the prevailing party and to
deny that party costs, the court must articulate some
“good reason” for doing so. Teague, 35
F.3d at 996; see also Oak Hall Cap & Gown Co. v. Old
Dominion Freight Line, Inc., 899 F.2d 291, 296 (4th Cir.
1990). Among the factors that justify denying an award of
costs are: (1) misconduct by the prevailing party; (2) the
unsuccessful party's inability to pay the costs; (3) the
excessiveness of the costs in a particular case; (4) the
limited value of the prevailing party's victory; or (5)
the closeness and difficulty of the issues decided.
Id. (citing Cherry, 186 F.3d at 446).
Ultimately, the court has discretion to award or deny costs
to the prevailing party. Cherry, 186 F.3d at 446.
case, there is no suggestion of misconduct by Defendants, the
prevailing party, and their victory is not of limited value.
Thus, the first and fourth factors favor assessing costs
against Plaintiff. While the majority of costs are undisputed
in amount, Plaintiff asserts that Duke Energy is unfairly
asking for costs for both the video deposition and the
transcribed deposition of Plaintiff's expert, David
Anderson (“Anderson”). (ECF No. 174 at 3.)
Plaintiff's argument places Exhibits G and K in dispute.
(ECF No. 177.) On the docket, Exhibit G is labeled
“Invoice for the deposition of David Anderson”
and Exhibit K is labeled “Invoice for the video
deposition of plaintiff's expert, David Anderson.”
(ECF No. 172.) Duke Energy's itemized bill of costs lists
Exhibit K as “Payment to AVN Solutions, LLC for
deposition of Plaintiff's expert David Anderson.”
(ECF No. 172-1.) However, the contents of Exhibit K indicate
that it is actually an invoice for the video deposition of
Robin Fleming, and reveal a different amount invoiced than
that stated in the itemized bill of costs. (ECF Nos. 172-1;
Energy contends that the deposition of Anderson was not
videotaped and cites Exhibit G in support. (ECF No. 176 at
1-2.) Duke Energy completely ignores Exhibit K in its
response, which the docket labels as invoicing a video
deposition for Anderson. Given that Exhibit K was apparently
mislabeled and that Duke Energy has failed to substantiate
the costs listed therein, the Court will not include that
invoice in the list of costs sought by Duke Energy. The court
finds that the remaining costs are not excessive, and the
third factor therefore weighs in favor of Defendants.
the fifth factor, Plaintiff contends that the issues in this
case were close and difficult and cites a portion of the
Court's March 31, 2016 Order in support. (ECF No. 174 at
2.) However, contrary to Plaintiff's assertions, the
Court did not expressly consider this to be a close case.
Rather, in the portion of the Order cited by Plaintiff, the
Court explained that “the Duke Defendants['] . . .
separate federal obligation to investigate the circumstances
surrounding a flight they deemed to be suspicious”
negated the factors that “would otherwise make this a
close case.” (ECF No. 170 at 33.) In short, the Court
does not find the issues in this case were notably close or
difficult. Thus, this factor also weighs in favor of
remaining question is whether Plaintiff has the ability to
pay costs. Plaintiff contends the estate “has no income
and few assets” and that awarding costs would create a
hardship. (ECF No. 174 at 2.) Plaintiff further asserts that
Defendants are in much better financial circumstances to bear
the costs of this litigation. (Id.) Given that the
majority of the other factors favor Defendants, the Court
declines to deny Defendants costs on this basis. The Fourth
Circuit has similarly rejected arguments that a
plaintiff's good faith, modest means, or the
defendant's substantially greater wealth (either alone or
in combination) justify the denial of costs. Cherry,
186 F.3d at 447-48 (noting that, while good faith is a
prerequisite to denial of costs, it did not alone justify
such denial and plaintiff had failed to show her means were
so modest she could not pay costs).
reasons explained above, the Court finds the costs sought
recoverable with the exception of $1, 062.10 in costs sought
by Duke Energy for payment to AVN solutions, LLC for the
deposition of Anderson. The Court, therefore, awards costs in
the amount of $6, 551.28 to Duke Energy and $3, 272.20 to the