Civil practice - Bill of costs - Payment of bond.

Byline: Mass. Lawyers Weekly Staff

Where the prevailing party has filed a bill of costs, he is entitled to recover taxable costs under Rule 54(d) and as permitted by the applicable statute, and where the defendant has demonstrated a clear ability to satisfy the judgment if affirmed on appeal, the bond required for a stay of execution pending appeal is waived.

"Presently before the court are the following post-trial motions that have been filed by the parties: (1) plaintiff's 'Bill of Costs' and defendant's 'Motion for Disallowance and Objections to Plaintiff's Bill of Costs'; (2) defendant's 'Motion to Compel Resolution of Outstanding Expert Deposition Fee Issues'; (3) plaintiff's 'Motion to Alter or Amend Judgment'; and (4) defendant's 'Motion for Stay of Execution of Judgment and Waiver of Bond Requirement'.

"Under Fed. R. Civ. P. 54(d), 'costs other than attorney's fees should be allowed to the prevailing party,' unless a rule of civil procedure, a federal statute, or a court order provide otherwise. Pursuant to 28 U.S.C. 1920, the costs that are recoverable under Rule 54(d) include fees for printed or electronically recorded transcripts necessarily obtained for use in the case, and fees and disbursements for witnesses. The specific witness fees that are recoverable are detailed in 28 U.S.C. 1821. A court's ability to deny costs that are eligible for taxation under Rule 54(d) operates with a 'background presumption favoring cost recovery for prevailing parties.' In re Two Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire Litig. (San Juan Dupont Plaza Hotel Fire Litig.), 994 F.2d 956, 962 (1st Cir. 1993). Thus, '[w]hen denying costs, a district court must offer an explanation for doing so unless the basis for denying costs is 'readily apparent on the face of the record.'' B. Fernandez & HNOS, Inc. v. Kellogg USA, Inc., 516 F.3d 18, 28 (1st Cir. 2008) (quoting San Juan Dupont Plaza Hotel Fire Litig., 994 F.2d at 963).

"The plaintiff argues generally that the deposition transcripts of the plaintiff and three doctors were used to defend against trial objections relating to their deposition testimony, but fails to cite any specific examples. The record reflects that plaintiff's counsel read from Dr. Buza's deposition transcript on the second day of trial in response to an objection from defense counsel. However, the record does not show that the plaintiff used the other witnesses' deposition transcripts at trial. The plaintiff has...