     Case: 14-11049      Document: 00513289942         Page: 1    Date Filed: 12/01/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                    No. 14-11049                           December 1, 2015
                                  Summary Calendar                           Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA, ex rel. JOHNNY RAY (J.R.) LONG,

              Plaintiff - Appellant

v.

GSDMIDEA CITY, L.L.C., a Delaware Limited Liability Company,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
       Johnny Ray Long appeals the district court’s award of costs to GSD&M
Idea City, LLC (“GSD&M”). 1 The district court dismissed Long’s underlying
qui tam False Claims Act (“FCA”) case against GSD&M with prejudice based
on judicial estoppel for Long’s failure to disclose his FCA claims in his
bankruptcy case. For the reasons that follow, we MODIFY the award of costs



       1  GSD&M refers to itself as “GSD&M Idea City, LLC,” but is listed in the CM/ECF
caption as GSDMIdea City, L.L.C.” U.S. ex rel. Long v. GSDMIdea City, L.L.C. (Long I), 798
F.3d 265, 269 n.1 (5th Cir. 2015). We refer to the Appellee as “GSD&M,” the name it uses for
itself and which this court found was used by the Delaware Department of State. We will
leave the case caption as it is for administrative reasons.
    Case: 14-11049     Document: 00513289942     Page: 2   Date Filed: 12/01/2015



                                  No. 14-11049
by subtracting $7768.89 of the costs and AFFIRM as MODIFIED in all other
respects.
                                        I.
      Long sued GSD&M under the FCA, 31 U.S.C. §§ 3729–3732. When he
filed these FCA claims, Long was a debtor in a Chapter 13 bankruptcy case;
yet, he failed to reveal his interest in the FCA suit to the bankruptcy court or
trustee. When the district court learned of Long’s failure to disclose, it granted
GSD&M’s motion to dismiss Long’s FCA case, reasoning that Long was
judicially estopped from asserting a claim that he had failed to assert in his
bankruptcy proceedings. Long appealed that judgment, and a different panel
of this court affirmed the dismissal of his case.      See U.S. ex rel. Long v.
GSDMIdea City, L.L.C. (Long I), 798 F.3d 265, 269 (5th Cir. 2015).
      After the district court granted GSD&M’s motion to dismiss, GSD&M
filed a bill of costs seeking $214,306.23 in reimbursement for expenses related
to transcripts, videography, exemplification and copying, printing, and witness
fees. The district court found that GSD&M was the prevailing party under
Federal Rule of Civil Procedure 54(d) and rejected Long’s various arguments
for why he should not be assessed costs. The court awarded GSD&M its
claimed costs after concluding that the costs were “necessarily incurred for use
in the case” and fell within those enumerated costs that may be awarded under
28 U.S.C. § 1920. Long timely appealed.
                                       II.
      We now consider Long’s arguments that GSD&M was not a prevailing
party as required by Federal Rule of Civil Procedure 54(b), that the district
court abused its discretion in awarding costs, and that certain costs awarded
by the district court are not authorized by 28 U.S.C. § 1920.
      A. Prevailing Party


                                        2
     Case: 14-11049        Document: 00513289942           Page: 3      Date Filed: 12/01/2015



                                         No. 14-11049
       Under Rule 54(d), “[u]nless a federal statute, these rules, or a court order
provides otherwise, costs—other than attorney’s fees—should be allowed to the
prevailing party.” The rule creates “a strong presumption” in favor of awarding
costs to a prevailing party, and “a district court may neither deny nor reduce a
prevailing party’s request for cost[s] without first articulating some good
reason for doing so.” Manderson v. Chet Morrison Contractors, Inc., 666 F.3d
373, 384 (5th Cir. 2012) (quoting Schwarz v. Folloder, 767 F.2d 125, 131 (5th
Cir. 1985)). Long does not challenge whether we may award GSD&M its costs
for this FCA suit under Rule 54(d), only whether GSD&M is a prevailing party
in this litigation. While we review an award of costs for a clear abuse of
discretion, Pacheco v. Mineta, 448 F.3d 783, 793 (5th Cir. 2006), we review the
“prevailing party” determination de novo, El Paso Indep. Sch. Dist. v. Richard
R., 591 F.3d 417, 422–23 (5th Cir. 2009).
       In Schwarz v. Folloder, this court established that “a dismissal with
prejudice is tantamount to a judgment on the merits” and renders a defendant
the prevailing party for the purpose of allocating costs. 767 F.2d at 130; see
also Pacheco, 448 F.3d at 794 n.19. 2 Therefore, we affirm the district court’s
holding that GSD&M is the prevailing party. Cf. Long I, 798 F.3d at 269
(affirming the dismissal of Long’s case).
       B. Factors
       1. Good Faith and Bad Faith


       2   Long argues that the Supreme Court’s decision in Buckhannon Board and Care
Home, Inc. v. West Virginia Department of Health and Human Resources abrogates this
precedent. 532 U.S. 598 (2001). Buckhannon addressed the question of whether a plaintiff
who is the catalyst for change can be a prevailing party even if he does not obtain a judgment
in his favor; the court rejected the “catalyst theory” for plaintiffs to be prevailing parties. 532
U.S. at 601, 605. (That holding as to the specific statute in question was later abrogated
when Congress amended the statute to encompass the catalyst theory. 5 U.S.C.
§ 552(a)(4)(E)). The Court did not address the longstanding principle that “a dismissal with
prejudice is tantamount to a judgment on the merits,” Schwarz, 767 F.2d at 130, entitling a
defendant to an award of costs.
                                                3
    Case: 14-11049      Document: 00513289942       Page: 4    Date Filed: 12/01/2015



                                    No. 14-11049
      Long asserts that the district court should have denied GSD&M costs
because GSD&M purportedly acted in bad faith by waiting until just before
trial to notify the district court about Long’s bankruptcy and failure to disclose
his FCA claim, thus incurring litigation costs for longer than necessary. Long
also argues that his good faith in failing to disclose the FCA claim, his
indigence, and the closeness and difficulty of the issues involved weigh in favor
of denying the claim for costs.
      Even if we assume arguendo that Long acted in good faith, we have held
that a losing party’s “good faith is alone insufficient to justify the denial of costs
to the prevailing party.” Pacheco, 448 F.3d at 795. Long also complains that
GSD&M acted in bad faith by failing to move for judicial estoppel sooner,
though it knew of his pending bankruptcy. However, Long does not point to
any evidence that GSD&M knew about Long’s failure to disclose his FCA
claims in his bankruptcy, the key fact that led GSD&M to move for judicial
estoppel. 3
      2. Other Arguments
      Long also claims that the law was uncertain regarding whether he could
be penalized for failure to disclose his FCA claims until after his bankruptcy
closed in 2013; this argument ignores prior precedent. See, e.g., Love v. Tyson
Foods, Inc., 677 F.3d 258 (5th Cir. 2012); Reed v. City of Arlington, 650 F.3d
571 (5th Cir. 2011) (en banc). Finally, we have never held that the “limited
resources” of the losing party provide a basis for denying the prevailing party
its costs. See Moore v. CITGO Refining & Chems. Co., 735 F.3d 309, 320 (5th
Cir. 2013). 4 Id.



      3  Long also argues that GSD&M acted in bad faith in responding to his arguments
about the Chapter 13 bankruptcy trustee. We discern no bad faith from these exchanges.
      4 We also find unconvincing Long’s argument that “costs should not be recoverable
from a qui tam Relator” on public policy grounds. See generally U.S. ex rel. Ritchie v.
                                          4
    Case: 14-11049      Document: 00513289942        Page: 5    Date Filed: 12/01/2015



                                    No. 14-11049
      C. Section 1920’s Requirements
      Long also argues that the district court erred in awarding costs that are
not included in 28 U.S.C. § 1920 or do not meet its requirements. See Coats v.
Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993) (“[A] district court may
decline to award the costs listed in the statute but may not award costs omitted
from the list.”). In relevant part, § 1920 states: “A judge or clerk of any court
of the United States may tax as costs the following: . . . (2) Fees for printed or
electronically recorded transcripts necessarily obtained for use in the case; . . .
[and] (4) Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the case.” “The
Supreme Court has indicated that federal courts may only award those costs
articulated in section 1920 absent explicit statutory or contractual
authorization to the contrary.” Gagnon v. United Technisource, Inc., 607 F.3d
1036, 1045 (5th Cir. 2010) (quoting Cook Children’s Med. Ctr. v. The New
England PPO Plan of Gen. Consolidation Mgmt., Inc., 491 F.3d 266, 274 (5th
Cir. 2007)).
      First, Long’s objection to the award of $185,674.89 in exemplification and
duplication costs that were incurred by GSD&M during discovery—because he
claims that costs incurred “merely for discovery” are not recoverable—fails.
See Fogleman v. ARAMCO (Arabian Am. Oil Co.), 920 F.2d 278, 285-86 (5th
Cir. 1991); Rundus v. City of Dallas, 634 F.3d 309, 315–16 (5th Cir. 2011)
(“[T]he authority of the trial court to assess necessary and reasonable costs
incurred during discovery can hardly be doubted.” (quoting Harrington v.
Texaco, Inc., 339 F.2d 814, 822 (5th Cir. 1964))).



Lockheed Martin Corp., 558 F.3d 1161, 1172 (10th Cir. 2009) (rejecting a similar “policy-
based rationale” because holding otherwise “would effectively legislate a per se rule
preventing prevailing FCA defendants from recovering costs, since [the] policy-based
argument would be equally applicable in every FCA case”).
                                           5
       Case: 14-11049    Document: 00513289942        Page: 6    Date Filed: 12/01/2015



                                     No. 14-11049
        Second, Long objects that many of the awarded costs either are not
included in § 1920 or should be reversed because they are based on items that
were not “necessarily obtained for use in the case.” See 28 U.S.C. § 1920(2),
(4).        The district court considered these arguments and found that
“reimbursement for hearing transcripts, deposition transcripts, additional
recording transcripts, printing costs, witness fees, and fees for exemplification
and copies . . . were necessarily incurred for use in the case,” and were all
“covered by 28 U.S.C. § 1920.” Accordingly, the district court awarded GSD&M
all of the costs it requested. With a few exceptions, we conclude that the
district court did not err.
        1. Deposition Transcripts and Copies
        Deposition Transcripts and Copies: A deposition or deposition copy “need
not be introduced into evidence at trial in order to be ‘necessarily obtained for
use in the case’” under § 1920; rather, the cost of a deposition or copy that is
reasonably expected to be used for trial or trial preparation may be taxable.
See Fogleman, 920 F.2d at 285–86.               Whether a deposition or copy was
necessarily obtained for use in the case is a factual determination within the
district court’s discretion, and “[w]e accord the district court great latitude in
this determination.” Id. To the extent that Long objects to these depositions
and copies because he thinks they were not necessary for GSD&M’s use in the
case, we reject this complaint. 5
        Video Depositions: Long separately asserts that the district court erred
in awarding costs for video depositions because they are not covered by § 1920.
That statute has been amended such that we conclude that the cost of taking
video depositions may be awarded if shown to be necessary for use in the case



        5 As noted below, we reverse the award of costs for several discrete items, but we
decline to reverse the entire award as Long requests.
                                            6
     Case: 14-11049        Document: 00513289942          Page: 7     Date Filed: 12/01/2015



                                        No. 14-11049
under § 1920(2). Cf. S & D Trading Acad., LLC v. AAFIS Inc., 336 F. App’x
443, 450–52 (5th Cir. 2009) (describing how this court once held that the costs
of taking a video deposition were not recoverable under § 1920, but implying
that such costs may be chargeable under the language of § 1920 as amended
in 2008). 6 As we noted in S & D Trading, § 1920(2) used to provide that fees
could be awarded “for all or part of the stenographic transcript necessarily
obtained for use in the case.” Id. at 450 (emphasis added) (citation omitted);
see also 28 U.S.C. § 1920 (2006). In 2008, § 1920(2) “was amended to state that
a judge may tax as costs ‘[f]ees for printed or electronically recorded transcripts
necessarily obtained for use in the case.’” Id. at 450–51 (emphasis added)
(quoting 28 U.S.C. § 1920(2) (version in effect in 2009)).                       The phrase
“electronically recorded transcripts” includes video transcripts of depositions.
       Video AND written deposition transcripts: In his reply brief, Long argues
that awarding costs for copies of both the video and written transcript of the
same deposition is improper. We need not decide this issue 7 because Long
inadequately briefed this argument before the district court and this court,
focusing his argument on whether the cost of video depositions should be
awarded at all. He failed to make the more specific argument or cite any
authority on the more specific issue of awarding both types of costs until his
reply brief before this court.        On such inadequate briefing and argument, we
decline to decide the question of whether costs for both videography and
written transcripts may be awarded for the same deposition under § 1920(2).



       6  Although S & D Trading is not “controlling precedent,” it “may be [cited as]
persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH
CIR. R. 47.5.4).

       7  See, e.g., Stanley v. Cottrell, Inc., 784 F.3d 454, 465–67 (8th Cir. 2015); In re Ricoh
Co., Patent Litig., 661 F.3d 1361, 1370 (Fed. Cir. 2011); Allstate Ins. Co. v. Plambeck, 66 F.
Supp. 3d 782, 786–93 (N.D. Tex. 2014); Am. Guarantee & Liab. Ins. Co. v. U.S. Fid. & Guar.
Co., No. 4:06CV655RWS, 2010 WL 1935998, at *2 (E.D. Mo. May 10, 2010).
                                               7
    Case: 14-11049    Document: 00513289942         Page: 8   Date Filed: 12/01/2015



                                 No. 14-11049
See generally FED. R. APP. P. 28(a)(8); Webb v. Investacorp, Inc., 89 F.3d 252,
257 n.2 (5th Cir. 1996).
      2. Copying Costs, Exemplification, and TIFF Formatting
      Copying Costs and Exemplification: Long contends that GSD&M should
not have been awarded the copying and exemplification costs it claimed
because it failed to properly itemize these costs and impermissibly sought
reimbursement for electronic discovery expenses not covered by § 1920.
GSD&M presented sufficient documentation to justify an award of costs for its
copying and exemplification expenses. GSD&M submitted a sworn declaration
by one of its attorneys, Christopher J. Fawal, attesting to the necessity of the
claimed costs, along with invoices describing those costs. The district court
found the incurred costs were necessary in the case. We have held that district
courts did not abuse their discretion in analogous situations, and we find no
abuse of discretion here. See, e.g., United Teacher Assocs. Ins. Co. v. Union
Labor Life Ins. Co., 414 F.3d 558, 574–75 (5th Cir. 2005); DP Sols., Inc. v.
Rollins, Inc., 353 F.3d 421, 434 (5th Cir. 2003).
      TIFF Conversion: We have not determined precisely which costs may be
awarded under § 1920 since the 2008 amendments, including what costs of
electronic discovery are taxable. Here, Long objects in broad terms that § 1920
does not cover the costs of production, including character recognition and the
conversion of documents to TIFF format from native format. However, he does
not itemize what portions of GSD&M’s claims are attributable to purportedly
non-recoverable costs. Before the district court and this court, Long simply
objected to awarding any discovery-related costs and pointed out that
conversion and character recognition costs should not be awarded because he
had agreed to production in native format.
      Courts have not uniformly addressed which electronic discovery costs are
recoverable under the most recent version of § 1920(4), including whether TIFF
                                        8
    Case: 14-11049     Document: 00513289942     Page: 9   Date Filed: 12/01/2015



                                  No. 14-11049
conversion and character recognition should be taxable. See, e.g., Colosi v.
Jones Lang LaSalle Americas, Inc., 781 F.3d 293, 296–98 (6th Cir. 2015)
(affirming a district court’s award of the costs attributable to imaging hard
drives under § 1920(4)); Country Vintner of N. Carolina, LLC v. E. & J. Gallo
Winery, Inc., 718 F.3d 249, 259–61 (4th Cir. 2013) (affirming the district court’s
finding that, “in [that] case, only the conversion of native files to TIFF and PDF
formats, and the transfer of files onto CDs, constituted ‘making copies’ under
§ 1920(4)”); Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158,
171 (3d Cir. 2012) (holding that “only the scanning of hard copy documents,
the conversion of native files to TIFF, and the transfer of VHS tapes to DVD
involved [taxable] ‘copying,’” under § 1920(4)); cf. CBT Flint Partners, LLC v.
Return Path, Inc., 737 F.3d 1320, 1329–30 (Fed. Cir. 2013) (analyzing what
costs should be awarded by questioning what type of production was required
of a party during electronic discovery). We need not resolve that disagreement
today, because we find no abuse of discretion in the district court’s award of
conversion and character recognition costs. GSD&M attested that these costs
were necessarily incurred for discovery responses and use in the case, and
GSD&M did not request all of the electronic discovery costs it incurred. In fact,
GSD&M provided invoices with descriptions the costs requested and noted
which costs it did not request. Viewing this evidence, the district court found
§ 1920 allowed for the award of these costs and that they were necessarily
incurred. Without an itemization by Long of which costs were not permissible
and an explanation of why § 1920 does not cover those costs, we find no abuse
of discretion in this award.
      3. Expert Fees and Miscellaneous Expenses
      Finally, Long argues that the district court abused its discretion in
awarding GSD&M fees for shipping, binding, tabbing, expedition of
transcripts, and other extra costs related to witness depositions. Long has
                                        9
    Case: 14-11049        Document: 00513289942          Page: 10      Date Filed: 12/01/2015



                                        No. 14-11049
enumerated each of these costs. GSD&M claims it was necessary to obtain
expedited transcripts because “Long noticed eight depositions in eight days”
during September 2013 and “GSD&M needed the transcripts for preparation.”
Additionally, GSD&M claims it needed expedited transcripts to file its
dispositive motions on time, since the last of Long’s depositions took place one
month before the deadline. It appears that both sets of depositions took place
between ten days and one month before a dispositive motions deadline set by
joint scheduling order. However, we have held that a copy of a deposition
obtained on an expedited basis “is not taxable unless prior court approval of
expedition has been obtained or the special character of the litigation
necessitates expedited receipt of the transcript.” Fogleman, 920 F.2d at 286.
The character of this litigation does not suggest that GSD&M could not have
obtained an extension to file dispositive motions, nor that the timing was
particularly crucial. 8 We therefore conclude that the award of costs should be
modified to delete the award of this $3463.62 in costs to expedite deposition
transcripts.
       Long also contests the award of costs for extra services like shipping,
binding, and tabbing of depositions. As with the cost of expediting transcripts
of depositions, incidental costs like shipping, binding, and tabbing are
generally not taxable, as these costs are not listed in § 1920. See, e.g., Wahl v.
Carrier Mfg. Co., 511 F.2d 209, 217 (7th Cir. 1975); Kroy IP Holdings, LLC v.
Safeway, Inc., No. 2:12-CV-00800-WCB, 2015 WL 4776501, at *3–4 (E.D. Tex.
Aug. 13, 2015). The Supreme Court has instructed federal courts not to award
costs not articulated in § 1920 as taxable, and these types of costs are nowhere


       8  GSD&M attempts to rely on Thanedar v. Time Warner, Inc., 352 F. App’x 891, 903
(5th Cir. 2009), in which this court affirmed an award of expedition costs where the district
court gave appellees forty-two days “to obtain a 1270-page transcript, review it, and submit
detailed findings of fact.” However, in that case, the district court specifically found that the
expedited trial transcripts were necessary.
                                              10
   Case: 14-11049     Document: 00513289942     Page: 11   Date Filed: 12/01/2015



                                 No. 14-11049
enumerated in the statute. See Gagnon, 607 F.3d at 1045. Accordingly, we
conclude that the award of costs must be modified to delete the award of $429
for shipping, tabbing, binding, and other such costs.
      Finally, the parties agree that the district court should not have awarded
GSD&M $4354.41 in fees for Edward Moore, GSD&M’s expert witness, or
$323.86 in PACER fees. Instead, the parties argue GSD&M should simply
have been awarded $802 for its expert witness fees, the maximum allowable
by statute. We accordingly MODIFY the district court’s award of $4354.41 in
expert witness fees, reducing that amount by $3552.41, to $802.00. We also
REVERSE the award of $323.86 in PACER fees altogether.
                                      III.
      We conclude that the district court abused its discretion in awarding
excessive costs for expert witness fees and awarding costs for the following: (1)
expedited transcripts; (2) shipping, tabbing, and binding costs; and (3) PACER
fees. Altogether, these costs amount to $7768.89. We therefore MODIFY the
award of costs by subtracting $7768.89, resulting in an amended cost award of
$206,537.34. We AFFIRM as MODIFIED the award of costs in all other
respects.




                                       11
