Clemmons v. Flora Food US Inc.

Background

The court had previously granted summary judgment to Flora Food US Inc., dismissing Duval Clemmons’s claims. The Clerk entered judgment on March 31, 2025. Clemmons then sought fees for Dr. Andrea Lynn Matthews, his designated testifying expert, whom Flora had deposed on February 14, 2024. He also asked the district court to review the Clerk’s taxation of $1,805 in costs in Flora’s favor.

Expert deposition fees

Federal Rule of Civil Procedure 26(b)(4)(E) generally requires the party taking an opposing expert’s deposition to pay the expert a reasonable fee for time spent responding to discovery, unless doing so would cause manifest injustice. The court held that the rule does not require the party seeking the fees to be the prevailing party. It also held that the rule covers both deposition preparation and attendance.

Clemmons requested payment for 1.5 hours of preparation and 1.75 hours attending the deposition, at $500 per hour. The court found the hourly rate and 3.25 total hours reasonable and concluded that the earlier summary judgment against Clemmons did not make awarding the fees manifestly unjust. It granted the motion for deposition-related expert fees in the amount of $1,625 and directed the Clerk to amend the judgment.

Review of taxed costs

Under Federal Rule of Civil Procedure 54(d)(1), costs other than attorney’s fees are generally allowed to the prevailing party. The court reviewed the Clerk’s taxation of costs independently. The categories of taxable costs are limited by 28 U.S.C. § 1920.

Pro hac vice fees

The Clerk had taxed $400 for the pro hac vice admission fees of two Flora lawyers who were not admitted in the Southern District of New York. The court held that these fees are Clerk’s fees within a category that may be awarded to a prevailing party, but concluded that they should not be taxed against Clemmons here. Flora had not shown that defending the case required unique skills or knowledge unavailable in the district. The court therefore directed the Clerk to remove the $400 in pro hac vice fees.

Deposition-transcript fees

Clemmons did not dispute that the deposition transcripts had not been used on the summary judgment motion. He challenged only the $5-per-page rate. Comparing that rate with the Judicial Conference’s rates for transcripts of judicial proceedings, the court concluded that $5 per page was reasonable. The court left that portion of the Clerk’s taxation unchanged.

Disposition

The court granted the motion for deposition-related expert fees in the amount of $1,625. It directed the Clerk to modify the taxation of costs to a total of $1,405, with the remainder of the Clerk’s taxation unmodified. The court also directed the Clerk to terminate the motions at ECF 60 and 65.