[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 02, 2001
No. 98-9566 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 97-00017-CV-1
ARCADIAN FERTILIZER, L.P.,
Plaintiff-Appellee,
versus
MPW INDUSTRIAL SERVICES, INC.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 2, 2001)
Before DUBINA, FAY and COX, Circuit Judges.
PER CURIAM:
MPW Industrial Services, Inc. (MPW) appeals from a judgment awarding
Arcadian Fertilizer, L.P. (Arcadian) damages, prejudgment interest and costs on
Arcadian’s breach of contract and negligence claims.
FACTS
Arcadian operates a fertilizer plant in Augusta, Georgia which includes a
facility dedicated to the production of ammonia. Arcadian hired MPW to clean the
build-up from a set of boiler tubes called the Nooter bundle, which MPW did by
blasting water through the tubes and by scrubbing them with wire brushes. Less than
a month after MPW technicians finished cleaning out the Nooter bundle, Arcadian
employees observed steam and water escaping from the top of the adjacent secondary
reformer, the result of an apparent rupture in the system. When the Nooter bundle was
removed, a brush remnant was found wedged in the vicinity of a ruptured tube.
PROCEDURAL HISTORY
Arcadian filed suit for negligence and breach of contract. After a seven day
trial, the jury found for Arcadian, finding that MPW had breached its contract, was
negligent in its actions, and that MPW’s negligence and breach of contract were the
proximate cause of Arcadian’s damages. The jury also attributed twenty-five percent
of the negligence proximately causing the tube failure to Arcadian. The verdict
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awarded $2,800,000 in compensatory damages and $980,000 in pre-judgment interest
on the contract claim.
Following trial, Arcadian submitted a bill of costs pursuant to Fed. R. Civ. P.
54 that included, among other items, a claim of $29,208.97 for trial exhibits. See Fed.
R. Civ. P. 54. Of this amount, $3,173.42 was for Arcadian’s share of copies of
oversize documents, color photographs and video exhibits. Arcadian claimed an
additional $25,675.55 in expenses for a computer animation. The computer animation
was used during trial to depict the chemical process for producing fertilizer and the
events leading up to the rupture of the Nooter bundle.
The district court, rejecting MPW’s arguments to the contrary, impliedly
concluded that the exhibits were necessary for use in the case. Acknowledging that
the computer animation was especially helpful to the jury, the court taxed MPW half
the total expense of the animation, or $12,837.77. Costs taxed for the other exhibits
amounted to $16,317.19,1 with the sum of all taxed costs totaling $30,144.64. MPW
appeals.
1
The district court calculated the total of “exhibit fees” as $16,317.19. Our
calculation of the sums enumerated in the order amounts to $16,011.19.
3
ISSUES ON APPEAL
Although MPW raises numerous issues in its brief, only one of them warrants
discussion:2 whether the district court abused its discretion in awarding costs to
Arcadian for trial exhibits and a computer animation. See Fed. R. Civ. P. 54(d)(1);
28
U.S.C. § 1920.
STANDARD OF REVIEW
We review a costs award for abuse of discretion. EEOC v. W&O, Inc.,
213 F.3d
600, 619 (11th Cir. 2000). We review a trial court’s conclusions of law de novo.
Sandoval v. Hagan,
197 F.3d 484, 491 (11th Cir. 1999).
CONTENTIONS OF THE PARTIES
MPW argues the district court abused its discretion in taxing the trial exhibits
and computer animation as costs. MPW contends that many of the exhibits were not
used at trial, and that some of them were cumulative. MPW also notes that Arcadian
failed to obtain approval from the district court prior to incurring the cost of the
computer animation, approval MPW maintains was required if Arcadian intended to
2
MPW also argues that the district court erred in: (1) excluding evidence of prior
and subsequent tube failures; (2) allowing Arcadian’s contract theory; (3) not applying
comparative negligence principles; (4) allowing the jury to award interest; (5) excluding the
testimony of a former employee of Nooter; (5) not excluding Arcadian’s computer animation;
and in (6) denying MPW’s motions for directed verdict on liability and on damages. MPW also
raises objections to the taxation of costs unrelated to the computer animation and trial exhibit
issues with which we concern ourselves infra. We find no merit in these arguments and reject
them without discussion. See 11th Cir. R. 36-1.
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attempt to tax it as cost. Finally, MPW contends that there is no statutory
authorization for taxing the cost of the computer animation.
Arcadian responds that costs associated with oversized documents, color
photographs, and videotape exhibits are exemplifications, and are recoverable when
used at trial so long as they were necessarily obtained for use in the case. See
28
U.S.C. § 1920(4). In support, Arcadian points to case law from other circuits allowing
the recovery of expenses for the production of demonstrative exhibits. See Maxwell
v. Hapag-Lloyd Aktiengesellschaft,
862 F.2d 767, 770 (9th Cir. 1988) (allowing costs
for illustrative materials); In re Kulicke & Soffa Indus. Inc.,
747 F. Supp. 1136, 1147
(E.D. Pa. 1990) (allowing unobjected-to costs for demonstrative exhibits). Arcadian
also argues that the district court acted within its discretion in taxing half the cost of
the computer animation to MPW because it was particularly helpful to the jury.
DISCUSSION
Federal Rule of Civil Procedure 54(d)(1) allows prevailing parties to receive
costs other than attorneys’ fees. Fed. R. Civ. P. 54(d)(1). The presumption is in favor
of awarding costs. Manor Healthcare Corp. v. Lomelo,
929 F.2d 633, 639 (11th Cir.
1991). As noted in the rule, the discretion of the district court to award costs is
subordinated to Congress’s dictates when express provisions are made in federal
5
statutory authority.3 Fed R. Civ. P. 54(d)(1). Although Congress has displaced or
modified district courts’ discretion in a variety of contexts, particularly where costs
are taxed against the United States and its officers and agencies, see, e.g. 15 U.S.C.
§§ 77v(a) & 79y (regarding Securities and Exchange Commission);
47 U.S.C. § 401
(regarding Communications Commission), the most significant provisions are in
28
U.S.C. § 1920, which enumerates the categories of costs and fees that a judge or clerk
of court may tax.
28 U.S.C. § 1920. As the Supreme Court has explained, absent
explicit statutory or contractual authorization, federal courts are bound by the
limitations set out in
28 U.S.C. § 1920. Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 432, 445,
107 S. Ct. 2494, 2499 (1987).
The only provision in § 1920 that is arguably relevant to Arcadian’s expenses
for the copies of oversize documents, color photographs, videotape exhibits and the
computer animation is § 1920(4), which allows “[f]ees for exemplification and copies
of papers necessarily obtained for use in the case.”
28 U.S.C. § 1920(4). For costs
to be taxed under § 1920(4), an item must fit within either the category “copies of
3
The text of Rule 54(d)(1):
Except when express provision therefor is made either in a statute of the United States or
in these rules, costs other than attorneys’ fees shall be allowed as of course to the
prevailing party unless the court otherwise directs; but costs against the United States, its
officers, and agencies shall be imposed only to the extent permitted by law. Such 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.
Fed. R. Civ. Pro. 54(d)(1).
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paper” or the category “exemplification.” We read “copies of paper” to mean
reproductions involving paper in its various forms, and conclude that because oversize
documents and color photographs are capable of this characterization, taxation of
these costs was not error. However, neither the videotape exhibits nor the computer
animation are susceptible to this characterization, and, as no other provision in § 1920
permits the taxation of this sort of demonstrative exhibit, we must decide whether
videotape exhibits and computer animations are “exemplifications” within the
meaning of § 1920(4). The issue is resolved by an analysis of the logic of EEOC v.
W&O, Inc.,
213 F.3d 600 (11th Cir. 2000) and Johns-Manville Corp. v. Cement
Asbestos Products Co.,
428 F.2d 1381 (5th Cir.1970).
In Johns-Manville the former Fifth Circuit4 addressed the propriety of taxing
the cost of charts and models as physical exhibits, and, after deciding that there is no
statutory provision for their taxation, concluded that absent prior authorization from
the court they may not be taxed as costs. Johns-Manville Corp., 428 F.2d at 1385.
More recently we have revisited the holding of Johns-Manville and its conclusion that
no statutory provision exists for the taxation of these kinds of exhibits, and concluded
that the Supreme Court’s determination in Crawford Fitting that statutory
4
In Bonner v. City of Pritchard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this court adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
7
authorization is an essential prerequisite to an award of costs necessarily abrogates
that portion of the Johns-Manville decision that condoned taxation if prior
authorization had been obtained. W&O, Inc., 213 F.3d at 623. This means that in this
circuit, physical exhibits like models and charts simply may not be taxed as costs
because there is no statutory authorization. Id; Johns-Manville Corp., 428 F.2d at
1385.
Guided by the logic of Johns-Manville and W&O, Inc. which excludes physical
models from § 1920(4)’s ambit, we conclude that the term “exemplification” imports
the legal meaning of “[a]n official transcript of a public record, authenticated as a true
copy for use as evidence,” BLACK’S LAW DICTIONARY 593 (7th ed. 1999), and not the
broader and common connotation that includes “a showing or illustrating by
example.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 795 (1981). Contra
Cefalu v. Village of Elk Grove,
211 F.3d 416, 427-28 (7th Cir. 2000) (discussing
alternative meanings of term and adopting broader construction). Because the
videotape exhibits and the computer animation are neither copies of paper nor
exemplifications within the meaning of § 1920(4), they fall within the unauthorized
8
category described by Johns-Manville and W&O, Inc. and taxing these costs was
error.5
CONCLUSION
We conclude that the costs for the oversize documents and the color
photographs are taxable under § 1920(4). Until Congress sees fit to amend the
language of § 1920 to include the innovative technologies currently used in the
production of demonstrative exhibits, computer animations and videotape exhibits are
not taxable because there is no statutory authority. See W&O, Inc., 213 F.3d at 623.
Accordingly, we vacate the award of costs with instructions to retax costs in
accordance with this opinion. The judgment is otherwise affirmed.
JUDGMENT AFFIRMED; AWARD OF COSTS VACATED AND
REMANDED WITH INSTRUCTIONS.
5
It is not clear from the record whether the videotape exhibits are actually excerpts
of videotape depositions, which may be taxed separately as costs pursuant to
28 U.S.C.
§ 1920(2), provided that the deposition meets the requirements outlined in Morrison v.
Reichhold Chemicals, Inc.,
97 F.3d 460 (11th Cir. 1996). Morrison, 97 F.3d at 464-65 (holding
that “when a party notices a deposition to be recorded by nonstenographic means, or by both
stenographic and nonstenographic means, and no objection is raised at that time by the other
party to the method of recordation pursuant to Federal Rule of Civil Procedure 26(c), it is
appropriate under § 1920 to award the cost of conducting the deposition in the manner
noticed.”). Should the district court determine on remand that the videotape exhibits are indeed
excerpts of videotape depositions that have not previously been accounted for in the court’s
calculations, and that Arcadian has met the requirements of Morrison, the court may in its
discretion tax the costs of such exhibits.
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