United States District Court, D. Minnesota
Patrick J. Schiltz United States District Judge
G4S Secure Solutions (USA) Inc. (“G4S”)-the
prevailing party in this case-submitted a bill of costs
totaling $2, 399.57 against plaintiff Stephen Svendsen. ECF
No. 98. The bill of costs sought to recover the amounts paid
by G4S for transcripts of the depositions of Svendsen and
Christopher Kenealy and for FedEx charges to deliver those
transcripts. See ECF No. 98. After review, the Clerk
of Court entered a cost judgment against Svendsen in the
amount of $2, 346.55. ECF No. 100. (The Clerk did not allow
G4S to tax $53.02 in FedEx delivery fees. See ECF
No. 100 at 1.) This matter is before the Court on
Svendsen's motion to review the taxation of costs. ECF
No. 101. For the reasons that follow, the Court denies
Court has substantial discretion in deciding whether to award
costs to a prevailing party under 28 U.S.C. § 1920 and
Fed.R.Civ.P. 54(d). See Zotos v. Lindbergh Sch.
Dist., 121 F.3d 356, 363 (8th Cir. 1997). “A
prevailing party is presumptively entitled to recover all of
its costs.” Thompson v. Wal-Mart Stores, Inc.,
472 F.3d 515, 517 (8th Cir. 2006) (quoting In re
Derailment Cases, 417 F.3d 840, 844 (8th Cir. 2005)).
“The losing party bears the burden of overcoming the
presumption that the prevailing party is entitled to costs .
. . .” 168th and Dodge, LP v. Rave Reviews Cinemas,
LLC, 501 F.3d 945, 958 (8th Cir. 2007).
asks the Court to reverse the taxation of costs against him
for two reasons. First, he argues that the two deposition
transcripts were not “necessarily obtained for use in
[this] case.” ECF No. 101 at 2. Second, he argues that
he is “unable to pay the amount of money now or in the
future.” ECF No. 101 at 4.
the Court finds that both deposition transcripts were
reasonably necessary to G4S at the time that it ordered them.
Svendsen argues that the transcripts were ordered for purely
investigatory purposes because G4S's summary-judgment
motion did not “rely on the depositions” either
“in fact or law.” ECF No. 101 at 3. That is
simply not true. G4S cited to both depositions throughout its
memorandum in support of its summary-judgment motion and
submitted both depositions into the record. See Sorin
Grp. USA, Inc. v. St. Jude Med., S.C., Inc., No.
14-CV-4023 (JRT/HB), 2017 WL 3503360, at *5 (D. Minn. Aug.
15, 2017) (finding deposition transcripts
“necessary” when the party seeking costs cited to
the transcripts in “its memorandum in support of its
motion for summary judgment”). And this Court cited to
both depositions throughout its order granting summary
judgment to G4S on Svendsen's defamation claims.
Svendsen v. G4S Secure Sols. (USA) Inc., No.
16-CV-0583 (PJS/HB), 2018 WL 4374008 (D. Minn. Sept. 13,
Court notes that G4S would be entitled to recover its costs
even if G4S had not cited the transcripts in support of its
summary-judgment motion. “[D]eposition transcripts for
witnesses that possessed information relevant to the claims
or defense in the case may be taxed” even if those
“transcripts were not used at summary judgment.”
Superior Seafoods Inc. v. Hanft Fride, No.
05-CV-0170 (DWF/FLN), 2011 WL 6218286, at *1 (D. Minn. Nov.
21, 2011), report and recommendation adopted, 2011
WL 6218000 (D. Minn. Dec. 14, 2011). At the time that the
transcripts were ordered, both Svendsen and Kenealy
unquestionably possessed information relevant to
Svendsen's claims and G4S's defenses. See
Zotos, 121 F.3d at 363.
Svendsen has not proven that he cannot afford to pay the
costs now or in the future. To be sure, a party's
indigence is a valid reason to deny costs. See Poe v.
John Deere Co., 695 F.2d 1103, 1108 (8th Cir.
1982). But a “nonprevailing party must be facing dire
financial circumstances” to avoid paying costs.
Kaplan v. Mayo Clinic, No. 07-CV- 3630 (JRT/JJK),
2011 WL 3837095, at *2 (D. Minn. Aug. 29, 2011).
“Furthermore, ‘[i]t is not just a matter of being
unable to presently pay the costs; it must also be shown that
the litigant is not likely to be able to pay the costs in the
future.'” Id. (quoting Denson v. Ne.
Ill. Reg. Commuter R.R. Corp., No. 00 C 2984, 2003 WL
21506946, at *1 (N.D. Ill. June 27, 2003)). The losing party
can satisfy its burden to establish indigence by submitting
“affidavits or other evidence of income, assets, and
schedules of expenses.” Id.
has provided no evidence that he cannot currently pay $2,
346.55 in costs, much less that he will be unable to pay
those costs in the foreseeable future. Instead, he simply
asserts that he is a “person of modest means” who
qualified for in forma pauperis status. ECF No. 101
at 4-5. As far as the record reflects, however, Svendsen is a
skilled, able-bodied man who is capable of earning a
substantial income and is far from retirement age.
Svendsen's unsupported assertions regarding his inability
to pay do not warrant reversal of costs.
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY ORDERED THAT plaintiff's
motion for review of the taxation of costs [ECF No. 101] is
G4S cited to the Kenealy deposition
throughout its memorandum. See, e.g., ECF No. 69 at
7, 8, 9, 10, and 30. G4S also cited to the Svendsen
deposition throughout its memorandum. See, e.g., ECF
No. 69 at 3, 4, 5, 6, 7, 9, 10, 15, 17, 18, 20, 21, 22, 27,
29, and 30 (citing to the plaintiff deposition). G4S's
attorney then filed transcripts of both depositions.
See ECF No. 72-1 (Svendsen deposition); ECF No. 72-3
Svendsen alleged that G4S defamed him
on two occasions. One of the allegedly defamatory statements
was made in a report written by Kenealy. See Am.
Compl. ¶¶ 65-72; see also Id. at
¶¶ 32-35. Obviously, Svendsen (the victim of
Kenealy's allegedly defamatory statement) and Kenealy
(the author of ...