Bergeron v. Cabral

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 10-1012
DAVID BERGERON, ET AL.,
Plaintiffs, Appellants,
v.
ANDREA CABRAL, individually and as Sheriff of Suffolk County,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Boudin, Howard and Thompson,
Circuit Judges.
Stephen C. Pfaff and Louison, Costello, Condon & Pfaff, LLP,
on brief for appellants.
Ellen M. Caulo, Deputy General Counsel, on brief for
appellee.
September 14, 2010
Per Curiam. Plaintiffs-appellants appeal from the
district court's award of costs for deposition transcripts over
their objections that the motion for bill of costs was untimely and
that some of the transcripts were not used at trial. We affirm.
Defendant-appellee, Suffolk County Sheriff Andrea Cabral
was the prevailing party in this 42 U.S.C. § 1983 suit brought by
plaintiffs-appellants, ten former jail officers at the Suffolk
County Sheriff's Department. Cabral filed a motion for an award of
deposition costs in the amount of $13,311.45. Plaintiffs opposed
the motion for costs on the ground that it was untimely, and that
some of the depositions were not actually introduced into evidence
or used at trial and, therefore, should not have been taxed as
costs. In granting the motion for bill of costs, the district
court ruled that the one-month delay in filing it was not
"excessive or prejudicial to plaintiffs," and that the claimed
costs were "reasonable and authorized by statute." Plaintiffs
appeal from that ruling.
"The award or denial of costs is generally reviewed only
for an abuse of discretion." 10 James Wm. Moore, Moore's Federal
Practice, §54.100[4][b] (3d ed. 1997). As the district court
stated, and neither party disputes, "[n]either the Federal Rules
nor the Local Rules of this court set a deadline for the filing of
a Bill of Costs." "If the local rules do not address the issue, a
motion for costs is not subject to any particular time limitation,
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but instead must be filed within a reasonable time." Id.,
§54.100[1][a].
The district court's website sets forth the procedure for
filing a bill of costs in that court, including a fifteen-day time
period which the website characterizes as "an informal practice,
rather than a formalized local rule." The defendant filed her bill
of costs 45 days after the expiration of the time to appeal instead
of 15 days after.1 The district court's website specifically
provides that allowance should be made for "litigants who file late
but claim, in good faith, that they were not aware of the time
restriction." The defendant, whose attorney filed an affidavit
stating her ignorance of the 15-day time period, falls within that
category.
In their brief, appellants argue that granting the
defendant's delayed motion for costs represents a "dereliction of
the Court's rules" and "disturbs finality." However, given that
the district court treats the fifteen-day time period as "an
informal practice, rather than a formalized local rule," and
specifically allows for exceptions under these circumstances,
appellants' objections are unfounded. The district court did not
1
Judgment entered on 8/24/09 and the 30-day appeal period
expired on 9/23/09. Therefore, under the "informal practice"
within the District of Massachusetts, Cabral should have filed her
motion for bill of costs by 10/8/09. Instead, she filed it
approximately one month later, on 11/9/09.
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abuse its discretion in failing to deny the motion for costs as
untimely.
Appellants also object that the district court abused its
discretion in awarding costs for the preparation of certain
depositions which were not "used at trial." Defendants sought
taxation of costs for the deposition transcripts of the ten
original plaintiffs and six current or former employees of the
Suffolk County Sheriff's Department. The claims of four of the
plaintiffs had been dismissed at the summary judgment stage.
Plaintiffs object that the deposition transcripts of those four
plaintiffs were not "used at trial" and therefore should not be
taxed as costs. They further object that because non-plaintiff
department employees Elizabeth Keeley and Eugene Sumpter did not
testify at trial, their depositions also should not have been taxed
as costs.
This court has held that deposition costs are taxable if
they "are either introduced into evidence or used at trial," and
that "[i]t is within the discretion of the district court to tax
deposition costs if special circumstances warrant it, even though
the depositions were not put into evidence or used at the trial."
Templeman v. Chris Craft Corp., 770 F.2d 245, 249 (1st Cir. 1985).
The record establishes, and plaintiffs do not dispute, that the
depositions to which appellants object were filed with the district
court in support of the partially-successful motion for summary
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judgment. Therefore, the transcripts were "necessarily obtained
for use in the case." 28 U.S.C. § 1920(2). See 10 Charles Alan
Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and
Procedure, § 2676, p. 423 (3d ed. 1998) ("[t]he justification for
taxing the expense of a deposition that is introduced into evidence
also supports taxing the expense of a deposition employed on a
successful motion for summary judgment"); 10 Moore's Federal
Practice, supra, § 54.103[3][c] (explaining that a deposition's
necessity is established if it is "used in pretrial proceedings,
such as on a motion to dismiss or for summary judgment"). The
district court did not abuse its discretion in awarding costs for
all of the claimed depositions. See Whitfield v. Scully, 241 F.3d
264, 271-272 (2d Cir. 2001).
Affirmed. See 1st Cir. R. 27.0(c).
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