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Date: 08-25-2023

Case Style:

Mark M. Messing v. Provident Life and Accident Insurance Company

Case Number: 1:20-CV-351

Judge: Hala Y. Jarbou

Court: United States District Court for the Western District of Michigan (Kent County)

Plaintiff's Attorney:

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Defendant's Attorney: Not available.

Description: Grand Rapids, Michigan insurance law lawyers represented Plaintiff who sued Defendant on a wrongful failure to pay long-term disability benefits.

Plaintiff Mark M. Messing sued Defendant Provident Life and Accident Insurance Company seeking reinstatement of his benefits under a long-term disability insurance plan. Plaintiff has succeeded on both his claim and Defendant's counterclaim. Before the Court is Plaintiff's motion for an award of costs, attorneys' fees, interest, a sum certain money judgment, and an order requiring Defendant to satisfy the judgment and continue to pay benefits owed.

Plaintiff requests costs of $8,875.93 in this action. These requested costs include, for example, the fees of several experts, filing fees, deposition transcript fees, travel expenses, and “[r]esearch, technology, copying, and postage expenses.” (Bill of Costs, ECF No. 65-5.) ERISA allows for the award of reasonable attorneys' fees and costs. “In any action under this subchapter . . . by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). ERISA is silent as to what costs other than attorneys' fees the Court may allow.

28 U.S.C. § 1920 provides a separate basis for awarding costs to a prevailing party. Such costs include “fees of the clerk and marshal,” fees for “transcripts necessarily obtained for use in the case,” “fees and disbursements for printing and witnesses,” “the costs of making copies of any materials where the copies are necessarily obtained for use in the case,” “docket fees,” and compensation of “court appointed experts.” Id.

A. 28 U.S.C. § 1920

Although Plaintiff seeks costs under § 1132(g)(1), Defendant does not object to certain costs awarded under § 1920. Of the costs claimed by Plaintiff, § 1920 allows for and Defendant does not object to awarding: the district court filing fee ($400); the Federal Bar Association fee for mediation ($25); the fees associated with the depositions of Crowley ($629.39), Larson ($840.78), and Messing ($1,133.17); and the Sixth Circuit filing fee ($505). The Court finds these costs to be reasonable. However, for the reasons stated below, the Court will not award the remaining costs listed in Plaintiff's bill of costs under § 1920.

Subsection 1920(3) allows for the recovery of “[f]ees and disbursements for . . . witnesses.” These witness costs, however, are limited to the scope of 28 U.S.C. § 1821. Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 440-41 (1987). Section 1821 authorizes per diem and mileage for witnesses in the context of court attendance or depositions; it does not authorize recovery for professional services or expert retainer fees. Therefore, Dr. Ancell's professional services fee, the expert fees of Dr. Callaghan and Dr. Hoerneman, and Dr. Hoernman's expert retainer fee will not be awarded under § 1920.

These fees likewise do not fall under Subsection 1920(6). Subsection 1920(6) provides for the recovery of compensation for court-appointed experts. Because Dr. Hoernman was not appointed by the Court, his fees will not be awarded under this subsection. See L&W Supply Corp. v. Acuity, 475 F.3d 737, 741 (6th Cir. 2007) (“[E]xpert witness fees may not be taxed as costs at a court's discretion under Rule 54(d) because § 1920 does not provide for them.”). Although not labeled as such, the fees for Dr. Callaghan and Dr. Ancell's assessments and professional services fit most closely as experts who were not appointed by the Court. Therefore, their fees will also not be awarded under this Subsection.

Subsection 1920(4) allows for the recovery of copying costs of “any materials where the copies are necessarily obtained for use in the case.” “When taxing these costs, the court must exercise its discretion and only allow taxation of costs for materials ‘necessarily obtained for use in the case' in an amount that is reasonable.” Hall v. Ohio Educ. Ass'n, 984 F.Supp. 1144, 1146 (S.D. Ohio 1997) (quoting 28 U.S.C. §1920). In order to recover copying costs, “a party must provide ‘information about what was copied or how the copies were used.'” Elsivier, Inc. v. Norfolk S. Ry. Co., No. 3:19 CV 160, 2020 WL 13469582, at *2 (N.D. Ohio July 14, 2020) (quoting Hall, 984 F.Supp. at 1146).

Plaintiff has provided a verified bill of costs, with a line item for “research, technology, copying, and postage expenses” in the amount of $1,457.05. Although the bill of costs shows that this total was incurred on September 12, 2020, the Court will assume the charge accrued over the full course of the litigation. Even so, the Court cannot verify what materials were copied, what portion of the total charge was allotted for copying as opposed to research, technology, or postage, or whether the copying charge was reasonable. See Elsivier, 2020 WL 13469582, at *2 (“This Court therefore cannot determine whether the duplication expenses were reasonable or necessary to the litigation -- meaning the request for duplication costs must be denied.”); Sublett v. Green, No. 5:17-CV-116-TBR, 2020 WL 438931, at *2 (W.D. Ky. Jan. 28, 2020) (denying an award of copying expenses because plaintiff did “not describe what he photocopied or how the photocopies were used”).

Finally, Plaintiff also claims other costs beyond what are allowed by § 1920, including, for example, travel expenses of his attorney, the cost of overnighting a package to Dr. Ancell, Thompson Reuters materials, and the cost of private mediation. See Wyandotte Sav. Bank v. N.L.R.B., 682 F.2d 119, 120 (6th Cir. 1982) (attorney travel expenses not recoverable under Section 1920); Hadix v. Johnson, 322 F.3d 895, 900 (6th Cir. 2003) (noting that postage is “not . . . within the meaning of [Section 1920]”); accord Hall, 984 F.Supp. at 1147 (“Indeed, the overwhelming weight of authority have declined to award costs for courier services, postage, telephone, or fax charges.”). The Court will not award these costs under § 1920.

In sum, under § 1920, Plaintiff is entitled to the costs of the district court filing fee; the Federal Bar Association fee for mediation; the fees associated with the depositions of Crowley, Larson, and Messing; and the Sixth Circuit filing fee.

Outcome: For the reasons stated above, Plaintiff's motion will be granted in part and denied in part. Plaintiff will not be granted attorneys' fees or a tax neutralization. Plaintiff will be awarded the sum of any benefits that remain outstanding from January 26, 2023, until this date with interest as well as costs of the action in the amount of $3,533.34. Defendant will also be ordered to continue to perform its duties in accordance with the contract between the parties.

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