Little, Larry v. Mitsubishi Motor ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2392
LARRY L. LITTLE,
Plaintiff-Appellant,
v.
MITSUBISHI MOTORS NORTH
AMERICA, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 C 1034—Joe Billy McDade, Judge.
____________
SUBMITTED DECEMBER 19, 2007Œ—DECIDED JANUARY 30, 2008
____________
Before RIPPLE, MANION and WOOD, Circuit Judges.
PER CURIAM. Larry Little, an African American, sued
his former employer, Mitsubishi Motors North America,
Inc., alleging that it discriminated against him on the basis
of race when it laid him off as part of a reduction in
Œ
After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the ap-
peals are submitted on the briefs and the record. See Fed. R.
App. P. 34(a)(2).
2 No. 07-2392
force. The district court granted summary judgment and
awarded costs to Mitsubishi. Mr. Little appeals both
judgments, but because only the appeal of the award of
costs raises a novel issue, we limit this opinion to that
appeal. We address Mr. Little’s appeal from the grant of
summary judgment on his underlying claim of discrim-
ination in a separate nonprecedential order also issued
today. For the reasons set forth in this opinion, we affirm
the district court’s judgment awarding costs to Mitsubishi.
I
BACKGROUND
The facts underlying Mr. Little’s discrimination claim
are set forth in our companion nonprecedential order and
need not be repeated here. After the district court granted
summary judgment to Mitsubishi, Mitsubishi moved under
Federal Rule of Civil Procedure 54(d) for an award of
costs and submitted a bill totaling $16,978.86. Mitsubishi
sought costs for copies of papers, court reporter ser-
vices, telephone charges, postage, delivery services and
service of summonses and subpoenas. After overruling
Mr. Little’s objections to Mitsubishi’s bill of costs, the
district court granted the motion, awarding Mitsubishi
all but $79.98 of the costs it sought. Mr. Little timely
appealed, contending (1) except for telephone use, none of
the costs awarded were authorized by statute; (2) costs
for copying documents, telephone use and delivery
services were unreasonable; and (3) costs of video-record-
ing his deposition, copying documents and serving sum-
monses and subpoenas were unnecessary.
No. 07-2392 3
II
DISCUSSION
We review an award of costs for abuse of discretion.
Ogborn v. United Food & Commercial Workers Union, Local
No. 881, 305 F.3d 763, 767 (7th Cir. 2002). Federal Rule of
Civil Procedure 54(d) provides that costs should be al-
lowed as a matter of course to the prevailing party. See Fed.
R. Civ. P. 54(d). Mr. Little maintains that the particular
costs awarded to Mitsubishi are either not permitted as a
matter of law or are so unreasonable or unnecessary as
to constitute an abuse of discretion.
A district court may not tax a prevailing party’s costs
to the losing party under Rule 54(d) unless the specific
expense is authorized by a federal statute. Crawford Fitting
Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987); Republic
Tobacco Co. v. N. Atl. Trading Co., 481 F.3d 442, 447 (7th
Cir. 2007). Mr. Little contends that the award of costs for
copies, computerized research, summonses, subpoenas,
delivery services and a video-recorded deposition are not
authorized by 28 U.S.C. § 1920. We disagree.
All of the above costs are authorized by § 1920. The only
novel issue is whether § 1920 authorizes awarding costs
for stenographically transcribing a video-recorded dep-
osition. The first half of Mr. Little’s contention, that § 1920
does not permit district courts to award costs for video-
recorded depositions at all, is foreclosed by our prior
decisions holding that such costs may be taxed. See Barber
v. Ruth, 7 F.3d 636, 645 (7th Cir. 1993); Commercial Credit
Equip. Corp. v. Stamps, 920 F.2d 1361, 1368 (7th Cir. 1990).
The more subtle question raised by Mr. Little’s pro se brief,
whether the costs of both video-recording and steno-
graphically transcribing the same deposition may be taxed
4 No. 07-2392
under the current rules, is a question of first impression
in this circuit.
Prior to 1994, we held that a prevailing party could not be
awarded costs for both the video-recording and steno-
graphically transcribing a deposition. See Barber, 7 F.3d at
645; Stamps, 920 F.2d at 1369. These decisions were based
on the pre-1993 version of Federal Rule of Civil Procedure
30(b)(4), which stated that, when a deposition was re-
corded by non-stenographic means, “a party may arrange
to have a stenographic transcription made at the party’s
own expense.” See Fed. R. Civ. P. 30(b)(4) (1993).1 A 1993
amendment to Rule 30 deleted the phrase “at the party’s
own expense,” and, although we have yet to interpret
the 1993 amendment, two of our sister circuits have
held that amended Rule 30(b)(2)-(3) now permits district
courts to tax the costs of stenographically transcribing
a video-recorded deposition. See Tilton v. Capital Cities/
ABC, Inc., 115 F.3d 1471, 1478 (10th Cir. 1997); Morrison v.
Reichhold Chems., Inc., 97 F.3d 460, 464-65 n.5 (11th Cir.
1996). We agree with our sister circuits’ interpretation of
amended Rule 30(b)(2)-(3) (now Rule 30(b)(3)) and hold
that such costs may be taxed.
The text of the rule is the most reliable indicator of the
intent of the rule-makers. Cf. McMillan v. Collection Prof’ls,
Inc., 455 F.3d 754, 762 (7th Cir. 2006). Here, the rule-makers
have removed the provision that we previously inter-
1
The relevant provision, originally found in Rule 30(b)(4), was
moved to Rule 30(b)(2)-(3) by the 1993 amendments, and again
to Rule 30(b)(3) by the 2007 amendments. The 2007 amendment,
however, was “intended to be stylistic only,” see Fed. R. Civ. P.
30 advisory committee’s note; it therefore does not alter our
analysis.
No. 07-2392 5
preted to bar an award of costs in this situation. Because
the 1993 amendments removed the “operative language,”
see Tilton, 115 F.3d at 1478 n.4, we must conclude that the
rule-makers intended to allow the costs of both video-
recording and stenographic transcription to be taxed to
the losing party. Cf. Nalley v. Nalley, 53 F.3d 649, 652 (4th
Cir. 1995) (“When the wording of an amended statute
differs in substance from the wording of the statute prior
to amendment, we can only conclude that Congress
intended the amended statute to have a different mean-
ing.”).
Section 1920 authorizes costs to be awarded for steno-
graphic transcripts only if the transcript is “necessarily
obtained for use in the case.” 28 U.S.C. § 1920(2). We agree
with the Tenth Circuit that most transcripts of video-
recorded depositions will fall into this category. See Tilton,
115 F.3d at 1478. For example, Federal Rule of Civil Pro-
cedure 26(a)(3)(A)(ii) requires any party intending to use
deposition testimony at trial to “provide to the other
parties and promptly file” a transcript of the pertinent
parts of the deposition if it was not recorded stenographi-
cally. Fed. R. Civ. P. 26(a)(3)(A)(ii). Similarly, Rule 32(c)
provides that “a party must provide a transcript of any
deposition testimony the party offers” at a hearing or
trial. Fed. R. Civ. P. 32(c). In this case, Mitsubishi used
Mr. Little’s video-recorded deposition to support its
motion for summary judgment, so the stenographic
transcript of that deposition was necessarily obtained
for use in the case.
Finally, in addition to being authorized by statute, a cost
must be both reasonable and necessary to the litigation for
a prevailing party to recover it. Cengr v. Fusibond Piping
Sys., Inc., 135 F.3d 445, 454 (7th Cir. 1998); McIlveen v. Stone
6 No. 07-2392
Container Corp., 910 F.2d 1581, 1582-83 (7th Cir. 1990).
Mr. Little contends that Mitsubishi’s cost of gathering
other evidence it never submitted to the court was not
necessary to the litigation. He also maintains that the costs
assessed for copying, telephone use and delivery charges
were unreasonable. We have reviewed the record and
conclude that these contentions are meritless and require
no further discussion.
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-30-08