United States District Court, D. Maine
WILLIAM P. SADULSKY, et. al., Plaintiffs,
TOWN OF WINSLOW, et al., Defendants.
ORDER ON BILL OF COSTS
parties are entitled to move for an award of costs pursuant
to Federal Rule of Civil Procedure 54(d)(1), which provides
in pertinent part that “[u]nless a federal statute,
these rules, or a court order provides otherwise, costs
...should be allowed to the prevailing party.” As
determined by the Court and the jury, Defendants are the
prevailing party in this case. Judgment (ECF No.
133). Expenses that may be taxed are specified in 28 U.S.C.
§ 1920, but the costs must be “necessarily
incurred in the case, ” pursuant to 28 U.S.C. §
1924. Defendants seek costs in the total amount of $4, 399.69
for transcript fees, witness fees and exemplification and
copy costs. Bill of Costs, (ECF No. 136). Plaintiffs
have objected to the Bill on the basis of unreasonableness
and necessity as well as the chilling effect of awarding
costs in this type of case. Plaintiff’s Objection
to Bill of Cost, (ECF No. 137). Having made an
independent review of Defendants’ Bill of Costs as well
as Plaintiffs’ response in opposition, the Clerk of
Court hereby taxes against Plaintiffs the total amount of two
thousand six hundred eighty-six dollars and eighty-five cents
($2, 686.85). Certain claimed costs are hereby excluded as
Public Interest and Cost Recovery
argue that the important public interest of allowing civil
suits where there are allegations of excessive force or
misuse of government power warrants not taxing
Defendants’ costs against them. Plaintiffs aver that
“tag[ging]” defense costs against meritorious
plaintiffs attempting to hold public officials accountable
will chill the future prosecution of these types of cases and
will harm the public good. Id. at pp. 1-2.
starting point for consideration is that the First Circuit
has interpreted Rule 54(d)(1) as creating a presumption that
“favor[s] cost recovery for prevailing parties.”
B. Fernandez & HNOS, Inc. v. Kellogg USA, Inc.,
516 F.3d 18, 28 (1st Cir. 2008); Papas v.
Hanlon, 849 F.2d 702, 704 (1st Cir. 1988)
(“presumption inherent in Rule 54(d)”); See
also Am. Auto. Mfrs. Ass’n v. Comm’r, Mass.
Dep’t of Envtl. Prot., 31 F.3d 18, 28 (1st Cir.
1994) (“Prevailing parties are normally entitled to
costs.”); and In re Two Appeals Arising Out of the
San Juan Dupont Plaza Hotel Fire Litig., 994 F.2d 956,
962 (1st Cir. 1993) (“[T]his negative
discretion...operates in the long shadow of a background
presumption favoring cost recovery for prevailing
parties.”). While the First Circuit permits that
“a district court may…exercise its discretion to
disallow a prevailing party’s bill of costs in whole or
in part, ” the trial court must “articulat[e]
reasons” to do so. In re Two Appeals, 994 F.2d
the directive of Rule 54(d)(1) is a difficult burden to
overcome, and the Clerk is unpersuaded by Plaintiffs’
argument. The rule makes clear that, in the ordinary course,
a prevailing party is entitled to an award of costs
regardless of the type of suit. The rule’s emphasis is
found in the statement “[u]nless a federal
statute, these rules or a court order provides
otherwise.” Fed.R.Civ.P. 54(d)(1) (emphasis added).
this Court has generally disallowed the taxation of costs to
a prevailing party only in circumstances of demonstrated
financial hardship. Other courts consider scant few
additional arguments. Some courts delineate that “only
misconduct by the prevailing party…or the losing
party’s inability to pay will suffice to justify
denying costs.” Cherry v. Champion Intern.
Corp., 186 F.3d 442, 446 (4thCir. 1999)
quoting Congregation of The Passion, Holy Cross Province
v. Touche, Ross & Co., 854 F.2d 219, 222 (7th
Cir.1988). See also In re Paoli R.R. Yard PCB
Litigation, 221 F.3d 449 (3rd Cir. 2000);
Schwarz v. Folloder, 767 F.2d 125, 131 (5th
Cir.1985) [describing the denial of costs as “in the
nature of a penalty” (internal quotation marks and
citation omitted)] and Serna v. Manzano, 616 F.2d
1165, 1167 (10th Cir.1980).
good faith claim and their pursuit of important statutory
rights “does not provide a sufficient basis to avoid
the presumptive taxation of costs.” Cherry,
186 F.3d at 446. Considering the intent and basis of a suit
in order to deny the taxation of costs would frustrate the
operation of Rule 54(d)(1) and would require the Court to
engage in value judgments. The express language in the first
clause of Rule 54(d)(1) does not provide for such value
judgments without express provision by rule or statute.
Fed.R.Civ.P. 54. “Rule 54(d)(1) should not be
interpreted to include a public interest exception as defined
by the judiciary on a case by case basis.”
Cherry at 448.
Court Reporter Fees and Deposition Costs
fees are taxable to the extent that they were
“necessarily obtained for use in the case.” 28
U.S.C. § 1920(2). In this case, Defendants have
requested fees for court reporter transcripts and exhibits
related to five depositions, those of Haley Fleming, Joshua
Veilleux, Michael Michaud, William and Sandra Sadulsky and
Michael Curran. Plaintiffs have objected to the costs related
to the Curran deposition because it was expedited and costly.
Based upon a review of the docket in this case, each of the
depositions was necessarily obtained in that they were either
used at trial or used and cited to in Defendants’
motion for summary judgment. Memorandum of Law in Support
of Bill of Costs, p. 3 (ECF No. 136-1).
each of the depositions was necessarily obtained, some of the
associated costs for the depositions will not be taxed.
Postage, emailing, shipping and handling costs for the
delivery of depositions are considered ordinary business
expenses that may not be charged as taxable costs in relation
to obtaining transcripts. Alexander v. CIT Technology
Financing Services, Inc., 222 F.Supp.2d 1087 (N.D. Ill.
2002); See also Maurice Mitchell Innovations, L.P. v.
Intel Corp., 491 F.Supp.2d 684 (E.D. Tex. 2007) and
Treaster v. HealthSouth Corp., 505 F.Supp.2d 898 (D.
Kan., 2007). Thus, Defendants’ costs for deposition
transcripts will be reduced by $50, the total amount of
postage and handling fees charged for each of the five
object to the cost of the Dr. Curran deposition. They say
that its costs should not be awarded because it was produced
in an expedited manner, in part because defense counsel would
not agree to a reasonable accommodation in the trial schedule
and because of the need to schedule the deposition later in
the process - right before trial - in order to accommodate
schedules. Plaintiff’s Objection to Bill of
Cost, p. 3, (ECF No. 137). Defendants say the expedited
transcript was necessary because “Plaintiffs scheduled
the deposition to occur four days before the first day of
trial, ” and the deposition was necessary because the
witness could not attend trial. Id.
to the documentation provided by Defendants, it appears that
the Curran transcript was produced at an expedited page rate
of $4.63 per page while the other four transcripts were
produced at an average rate of $2.50 per page.
Documentation in Support of Bill of Costs, pp. 7-11
(ECF No. 136-2). The expedited rate represents an extra cost
for a transcript which “is not taxable unless prior
court approval of expedition has been obtained or the nature
of the litigation necessitates expedited receipt.”
Fogleman v. ARAMCO, 920 F.2d 278 at 286 (5th Cir.
1991). See also U.S. v. Davis, 87 F.Supp.2d 82, 90,
(D.R.I. 2000); Pan American Grain Mfg. Co. v. Puerto Rico
Ports Authority, 193 F.R.D. 26, 40 (D.P.R. 2000)
(“..an expedited transcript, without
explanation…for its necessity, is a mere convenience
for counsel”); Farmer v. Arabian American Oil
Co., 379 U.S. 227 (1964); Sun Ship, Inc. v.
Lehman, 655 F.2d 1311, 1318 n.48 (D.C. Cir. 1981)
(overnight transcription of depositions disallowed when
purely for convenience of counsel); and Hill v. BASF
Wyanotte Corp., 547 F.Supp. 348, 352 (E.D. Mich. 1982)
(no showing of need for expedited transcript of deposition
and disallowing daily transcript due to no prior court
approval). While Defendants have attempted to explain the
necessity of the expedited rate, Plaintiffs have alleged that
the rate was necessary because of decisions of counsel or
scheduling problems. Where the facts supporting necessity in
this case are debatable, the Clerk finds that the burden to
demonstrate necessity has not been met and that the
“[a]dditional charges incurred merely for the
convenience of one party's counsel should not be taxed to
the other.” Fogelman at 286. Therefore,
because the parties agree that the Curran transcript was
necessary, Defendants’ costs for the transcript will be
taxed at the reduced, standard rate rather than the expedited
rate. The Clerk will apply the standard rate of $2.50 per
page rather than expedited rate of $4.62 per page, resulting
in a total taxed cost of $161.25 for the Curran deposition
($152.50 for the transcript and $8.75 for the copies).
the total amount to be taxed for transcripts is $1, 423.25.