We’ve written frequently on ways that parties can recover their costs of suit — particularly deposition-related costs — at the conclusion of civil litigation. Costs related to deposition transcripts used at trial, deposition transcripts of corporate representative witnesses, and deposition transcripts used in successful motions for summary judgment are all potentially recoverable in federal courts. As are costs and deposition expenses arising from needless skirmishing over pretrial discovery requests.
Successful civil litigants have also had success recovering costs associated with newer technology tools such as those for online exhibit-sharing platforms and “real-time” transcription services.
Coming away with a mere $120 judgment, the plaintiff was nevertheless able to recover $14,806 in attorneys’ fees, $10,130 in deposition costs, and another $825 in costs for an interpreter who worked at several of the depositions.
The linchpin for an award of costs is a determination that one side of a contested matter is the “prevailing party.” Even a modest financial victory is enough for a court to bestow “prevailing party” status on a litigant. Take, for example, the case of Valdes v. Kendall Healthcare Group Ltd., No. 22-cv-22046 (S.D. Fla., July 19, 2024), where the plaintiff in a wrongful termination case had six of seven legal claims tossed out on summary judgment and later accepted a $120 offer of judgment on the remaining viable Fair Labor Standards Act claim.
Coming away with a mere $120 judgment, the plaintiff was nevertheless able to recover $14,806 in attorneys’ fees, $10,130 in deposition costs, and another $825 in costs for an interpreter who worked at several of the depositions.
How is this possible? The answer lies, of course, in the statutory language.
The FLSA provides that a court “shall, in addition to any judgment awarded to plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. 216(b). Note the statutory word “shall” here: attorney fee awards are mandatory for prevailing plaintiffs in FLSA cases.
In most FLSA cases, plaintiffs become prevailing parties when they (a) win a judgment on the merits or (b) secure a settlement agreement enforced by a court order. An offer of judgment is not quite the same thing as either of these successful outcomes. Nevertheless, the magistrate judge said here that accepting the offer of judgment (later enforced by court order) was enough to establish the plaintiff as a “prevailing party,” thus entitling her to an award of attorneys’ fees and costs. Yes, the defendant beat back all of the plaintiff’s legal claims (various federal and Florida workplace and age discrimination claims) save one; and yes, $120 is a modest recovery. Nevertheless, the magistrate decided, the plaintiff’s meager recovery was enough to support the conclusion that she did in fact “prevail” on her FLSA claim.
The plaintiff’s paltry financial recovery was a factor, however, when the magistrate determined how much of her attorneys’ fees were chargeable against the defendant. The plaintiff is not entitled to recovery of attorneys’ fees incurred prosecuting legal claims that were dismissed on summary judgment, it said. Here, the plaintiff “mostly lost” the case, the magistrate said, adding that “a significant amount, if not the majority of the work done by Plaintiff’s attorney in this matter, was in pursuit of the claims that were eliminated at summary judgment.” Also relevant was the fact that the plaintiff’s legal victory came in the form of an offer of judgment on the FLSA claim, tendered by the defendant after all of the plaintiff’s other legal claims had been found meritless. The magistrate therefore trimmed the plaintiff’s attorneys’ fee request by 80%, yielding an award of $14,806.
The defendant was not so fortunate in challenging the plaintiff’s request for recovery of deposition-related costs. It argued that all of the 15 depositions taken in the case pertained to legal claims that were dismissed on summary judgment and that none of them — somewhat obviously — pertained to the FLSA claim on which the plaintiff prevailed.
The relevant inquiry is whether, according to 28 U.S.C. 1920(2), the transcripts at issue were necessarily obtained for use in the case. In determining the necessity of a deposition, it must only appear to have been reasonably necessary at the time it was taken. Here, the magistrate found, the defendant has failed to demonstrate that the deposition fees were not necessary for use in this case. The costs for all of them are chargeable against the defendant, it held.
The magistrate judge’s ruling was adopted Aug. 14 by the district court.
The case illustrates how careful consideration — at the outset — of which legal claims provide recovery of attorneys’ fees and costs awards can be critical to litigation success, however modest and limited that “success” might be. In the Valdes case, the FLSA claim that yielded roughly $25,000 in fees and deposition costs was not pleaded in the original complaint. Counsel’s later decision to add it in a subsequent amended complaint was the difference between a meager, nuisance value settlement and the partial recovery of litigation expenses that either the firm or the plaintiff would have needed to shoulder.
