
    Elmore HEMPSTEAD, Plaintiff, v. GEORGIA-PACIFIC CORPORATION, Defendant.
    No. 87-1023.
    United States District Court, W.D. Arkansas, El Dorado Division.
    Jan. 27, 1989.
    John W. Walker, Little Rock, Ark., for plaintiff.
    James M. Gary, Ramsay, Cox, Bridge-forth, Gilbert, Harrelson & Starling, Pine Bluff, Ark., for defendant.
   MEMORANDUM OPINION

OREN HARRIS, Senior District Judge.

This action was commenced with the filing of complaint by the plaintiff, Elmore Hempstead, February 18, 1987, seeking relief pursuant to 42 U.S.C. § 1981 claiming he was discriminated against by defendant.

After substantial discovery over an extended period of time, the case was scheduled for trial to the court to commence August 8, 1988, requiring three full days. The case was taken under advisement requesting parties to submit briefs.

On December 19,1988, the Court entered its Memorandum Opinion and Judgment in favor of defendants and dismissed plaintiff’s complaint with prejudice.

Subsequently, counsel for the defendant filed with the clerk a Bill of Costs on behalf of the defendant against the plaintiff seeking recovery of the sum of $2,668.09 as costs, which included the sum of $2,408.00 incident to taking of depositions by the defendant preliminary to the trial of the case.

On January 4, 1989, the clerk of the court taxed costs in favor of the defendant against the plaintiff in the total sum of $260.09, representing fees disbursed for witnesses.

Defendant has filed a Motion for Review of Clerk’s Determination of Costs Taxed, together with brief in support thereof, stating the clerk had failed to tax costs in favor of the defendant for the costs incident to taking of depositions setting forth the names and sums of those deposed by the defendant.

Counsel for the plaintiff has made no objection to any portion of the defendant’s Bill of Costs, or responded to the motion for review.

The question of defendants recovery of costs of litigation as prevailing parties to litigation has been a subject of consideration by various courts throughout the history of judicial procedures in this country. In the instant action counsel for the defendants relies on Title 28 U.S.C. § 1920 which provides:

A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.

Rule 54(d) of the Federal Rules of Civil Procedure provides:

“Costs. Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; * * *. Costs may be taxed by the clerk on one day’s notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.”

In Farmer v. Arabian American Oil Company, 379 U.S. 227, 232, 85 S.Ct. 411, 415, 13 L.Ed.2d 248, the Supreme Court in commenting on the rule stated: “While this Rule could be far more definite as to what ‘costs shall be allowed,’ the words ‘unless the court otherwise directs’ quite plainly vest some power in the court to allow some ‘costs.’ ” This rule as stated by the Supreme Court is based on the well-established law that a prevailing defendant is entitled to costs and attorney’s fees only if the action of the plaintiff was considered to be “frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Robinson v. Monsanto Co., 758 F.2d 331, 336 (8th Cir.1985); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978); Bass v. Southwestern Bell Telephone Company, Inc., 817 F.2d 44 (8th Cir.1987); Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163.

It has been held that the expenses of a deposition may be taxed as costs if it is received in evidence, but such is not always the fact. Compare Cox v. Maddux, 285 F.Supp. 876 (W.D.Ark.1968) and Banks v. Chicago Mill & Lumber Co., 106 F.Supp. 234 (E.D.Ark.1950). * * * It has been held that the expenses of a deposition is taxable even though not used at trial, if it seemed necessary at the time it was taken. Koppinger v. Cullen-Schiltz & Assoc., 513 F.2d 901 (8th Cir.1975).

More recently in consideration of an issue involving entitlement by expert witnesses to costs for services the U.S. Supreme Court held in Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385, that Rule 54(d) of the Federal Rules of Civil Procedure does not give the federal courts the power to evade the provisions included in 28 U.S.C. § 1821 embodied in 28 U.S.C. § 1920 as to the kind of expenses that may be taxed as costs, and may not exceed this limitation when a prevailing party seeks reimbursement of fees paid to its own expert witnesses. The court there stated in paragraph [lb] “We hold that absent explicit statutory or contractual authorization for the taxation of the expenses of a litigant’s witness as costs, federal courts are bound by the limitations set out in 28 U.S. C. § 1821 and § 1920 [28 USCS. § 1821 and § 1920].”

This rule as stated by the Supreme Court when viewed in the light of the established rule of the discretionary authority of the court indicates that the district court has the power of decision in deciding on whether the litigation from the outset was frivolous, unreasonable, or without foundation. Consequently, the trial judge has the primary authority to determine under the circumstances the issue of costs a prevailing defendant would be entitled to receive absent “abuse of discretion.”

Since Crawford, supra, our Eighth Circuit Court of Appeals has considered this matter of costs in Pershern v. Fiatallis North America, Inc., 834 F.2d 136. At page 139 the court concluded:

“Finally, both parties appeal the district court’s order concerning costs. After the clerk declined to award all the expenses detailed by Fiatallis in its bill of costs, Fiatallis sought review by the district court of the clerk’s determinations. The district court reviewed the bill of costs and granted some but not all of Fiatallis’ additional requests.
"At issue are the costs of the state court filing fee incurred before removal of the case to federal court and the removal bond premium, as well as certain deposition transcripts, medical records, and expert witness fees. The claim does not involve attorney fees. Fiatallis conceded at oral argument it is not entitled to expert witness fees in excess of the thirty dollars per day already allowed by the district court, but reaffirmed its cross-appeal on the remaining costs. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 2496, 2499, 96 L.Ed.2d 385 (1987); 28 U.S.C. § 1821.
“Recovery of costs in the district court is generally governed by statute and the Federal Rules of Civil Procedure. See 28 U.S.C. § 1920; Fed.R.Civ.P. 54(d). Section 1920 defines ‘expenses that a federal court may tax as a cost under the discretionary authority found in [r]ule 54(d).’ Crawford Fitting Co., 107 S.Ct. at 2497. Thus, not all expenses of litigation are costs taxable against the losing party, and within the statutory framework of costs eligible to be taxed, the district court has discretion in determining and awarding costs in a given case. Id.” The ruling just referred to above, con-

cluded: “after reviewing the record, we find no abuse of discretion by the district court in its treatment of costs, and the balance of its order on the matter is affirmed.”

It appears to this Court that the last decision on the Court's authority to consider the Bill of Costs, under the circumstances, establishes that this court has under the standard of “discretionary authority” to consider costs in some cases wherein the defendant was the prevailing party to the litigation.

However, it appears to the Court that this authority is not unlimited. If the costs claimed by the defendant appears to be unreasonable or unnecessary the court under the discretion rule may deny costs.

The Court is of the opinion that it is unnecessary to reach the question of “frivolous, unreasonable, or without foundation.” In the instant case it appears to the Court that it was not necessary for the defendant to depose the witnesses who primarily lived in the area and were available. In fact, they were available and did testify. Deposing of the witnesses appears to be merely discovery and not for the purpose of utilizing the transcripts of the witnesses for the purpose of trial. Applying the discretionary rule it appears to the Court that the depositions were unnecessary except for the edification of the attorneys on behalf of their clients. Applying this rule of reason the Court' is of the opinion that the request of the defendants, even though the prevailing party in the litigation should be denied.

A separate Judgment will be entered simultaneously with this Opinion. 
      
      . OF COURSE. That which may be done in the course of legal proceedings without making any application to the court; that which is granted by the court, without further inquiry, upon its being asked: as, a rule to plead is a matter of course.
     