United States District Court, D. South Carolina, Florence Division
Bryan Harwell, United States District Judge
action was tried before a jury on December 10, 2018. The jury
returned a verdict in favor of the Defendant. Judgment was
entered on December 12, 2018. [ECF No. 62]. This matter is
now before the court on Defendant's Bill of Costs filed
on December 13, 2018. Plaintiff filed Objections to the Bill
of Costs. Defendant filed a reply and Plaintiff filed a
parties are entitled to an award of costs pursuant to Federal
Rule of Civil Procedure 54(d)(1), which states 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.” The
rule makes clear that, in the ordinary course, a prevailing
party is entitled to an award of costs and there exists a
presumption to that effect. See 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.” Wyne v. Medo Indus., Inc., 329
F.Supp.2d 584, 586 (D. Md. 2004) (citing 10 Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice & Procedure § 2668 at 232 (3d ed. 1998)).
“To overcome the presumption, a district court
‘must justify its decision [to deny costs] by
articulating some good reason for doing so.'”
Cherry, 186 F.3d at 446 (quoting Teague v.
Bakker, 35 F.3d 978, 996 (4th Cir. 1994) (internal
quotations and citations omitted)).
may be denied to the prevailing party only when there would
be an element of injustice in a presumptive cost
award.” Id. (citing Delta Air Lines, Inc.
v. August, 450 U.S. 346, 355 n.14 (1981)). Factors which
may justify refusal by the court to award costs include
misconduct by the prevailing party, the losing party's
inability to pay, the excessiveness of the costs claimed, the
limited value of the prevailing party's victory, or the
closeness and difficulty of the issues decided. See
Teague, 35 F.3d at 996.
seeks an award of costs in the amount of $5, 529.15.
Plaintiff argues that he prevailed on certain matters and
each side should bear their own costs. For example, Plaintiff
asserts that he prevailed at summary judgment on the defense
of unexpected emergency and notes that Defendant withdrew her
comparative negligence defense and admitted duty and breach.
However, Plaintiff did not prevail on his sole claim for
negligence. “To prevail in an action founded in
negligence, the plaintiff must establish three essential
elements: (1) a duty of care owed by the defendant to the
plaintiff; (2) a breach of that duty by a negligent act or
omission; and (3) damage proximately caused by a breach of
duty.” Vinson v. Hartley, 477 S.E.2d 715, 720
(S.C. Ct. App. 1996). In this case, the jury found that
Defendant's negligence did not proximately cause
Plaintiff's damages. While Plaintiff may have established
duty and breach, he did not establish that his damages were
proximately caused by Defendant's breach of duty.
Accordingly, Plaintiff did not prevail on his negligence
claim. Defendant is clearly the prevailing party and entitled
to costs. Plaintiff has failed to advance a sufficient reason
for denying costs to the prevailing party.
contends that if the Court awards costs, the only costs
awarded should be the $400.00 fee paid to the Clerk's
Office when the case was removed.
expenses that may be taxed are listed in 28 U.S.C. §
1920, and include 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 for court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of
special interpretation services under section 1828 of this
Defendant is entitled to some costs, she is not entitled to
all of the costs she requested. Specifically, Defendant is
not entitled to Dr. Edwards's deposition fee ($1, 500.00)
or Dr. Edwards's fee for review of the records ($500.00).
Expert witness deposition fees and fees for reviewing medical
records are not recoverable under § 1920. See
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 ...