Private process server fees unrecoverable

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Where prevailing parties filed a bill of costs to recover private process service fees, that request was denied. While the Fourth Circuit has not yet spoken on the issue, and other circuits are split on the issue, the recent trend in the Western District of Virginia is to deny such requests because federal courts cannot award costs “not enumerated in § 1920,” and § 1920 does not reference fees for “private process severs.”

Background

Having prevailed following a jury trial, defendants Western Express Inc. and Ervin Worthy have filed a bill of costs, seeking $ 1,398.95 for fees for service of summons and subpoena, $11,727.66 for fees for printed or electronically recorded transcripts necessarily obtained for use in the case and $40.00 for fees for witnesses.

Analysis

Plaintiff argues defendants should not be able to recover fees paid to private process servers. Federal circuit courts are split on whether fees paid to “private process servers are recoverable under § 1920(1).” While the Fourth Circuit has not yet spoken on the issue, the recent trend in the Western District of Virginia is to deny such requests because federal courts cannot award costs “not enumerated in § 1920,” and § 1920 does not reference fees for “private process severs.” The court will continue to follow this trend. Thus, the amount of $1,398.95 paid to private process servers will be reduced from defendants’ bill of costs.

Plaintiff also objects to the costs of the video depositions of plaintiff, defendant Worthy and Kenneth Murphy, claiming that defendants failed to demonstrate why both deposition transcripts and video depositions were necessary. Defendants contend that the costs for video depositions were necessary because many of the fact witnesses lived more than 100 miles from the federal courthouse in Lynchburg, Virginia and thus were outside the court’s subpoena power.

They also claim that “Plaintiff’s own use of numerous videotaped depositions at trial serves as a tacit admission that it was necessary to collect this evidence.” And they assert use of plaintiff’s deposition was necessary “because, as recently as within one week of the trial, Plaintiff refused to confirm whether he planned to appear and testify.”

Defendants have demonstrated that the costs for both transcribing and videotaping the depositions of plaintiff, defendant Worthy and Murphy were necessarily obtained for use in the case. The court specifically notes that this was a fact-intensive case in which assessing witness credibility was a critical issue for the jury.

It is hereby ordered that defendants’ bill of costs is reduced by $1,398.95 and that defendants are awarded costs in the amount of $11,767.66.

Defendants’ bill of costs granted in part, denied in part.

Le Doux v. Western Express Inc., Case Nos. 6:20-cv-51, 6:20-cv-52, July 6, 2023. WDVA at Lynchburg (Moon). VLW 023-3-383. 4 pp.

Editor’s note: A version of this digest that appeared in the July 24, 2023, print issue misidentified the case as VLW No. 023-3-384.