United States District Court, D. Maine
ORDER ON BILL OF COSTS
accordance with the Court's Order on Pending
Motions, ECF No. 23, and the Judgment, ECF No.
24, in this case, the prevailing party is Defendants. As
such, Defendants are entitled to an award of costs pursuant
to Federal Rule of Civil Procedure 54(d)(1), which reads 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.” While the expenses
that may be taxed are specified in 28 U.S.C. § 1920,
taxable costs must also be “necessarily incurred in the
case, ” pursuant to 28 U.S.C. § 1924. Defendants
seek costs in the total amount of $1, 418.49 for deposition
transcript costs, service fees and fees for witnesses.
Bill of Costs, ECF No. 25. Plaintiff has objected to
the Bill in her Response to Bill of Costs, ECF No.
made an independent review of Defendants' Bill of Costs
and Plaintiff's Response, the Clerk of Court hereby taxes
against Plaintiff the total amount of one thousand two
hundred sixty-one dollars and eighty-nine cents ($1, 261.89).
Certain claimed costs are excluded as explained herein.
Public Policy and Indigency
response to the claimed Bill of Costs, Plaintiff argues that
the Defendants' Bill of Costs should be denied in its
entirety for equitable reasons: that the awarding of costs
would “chill” similarly-situtated plaintiffs who
might be intimidated by the threat of costs; that she has
limited resources to pay the costs such that paying them
would financially devastate her; and that Defendants have
vastly more resources. Response, ECF No. 27, pp.
the Bill of Cost is challenging for Plaintiff as it is for
any other non-prevailing party because the First Circuit has
interpreted Rule 54(d) as creating a presumption
“favoring cost recovery for prevailing
(parties).” B. Fernandez & HNOS, Inc. v.
Kellogg USA, Inc., 516 F.3d 18 (1st Cir.
2008) and 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
the Court may, in exercising its discretion, consider
“the limited financial resources of the
plaintiff.” Papas v. Hanlon, at 704
(1st Cir. 1988). In considering denial of costs
based upon indigency, courts have generally weighed the
disparity of resources of the parties, the merit of the
plaintiff's claim and the impact of the award requested.
See DeSaint v. Delta Air Lines, 2015 WL 4111428 (D.
Mass. 2015); Anunciacao v. Caterpillar Japan, 283
F.R.D. 44, 45 (D.Mass.2012); Kuzman v. Hannaford Bros.
Co., 2005 WL 1981498, at *2 (D. Me. 2005); Mulvihill
v. Spalding Worldwide Sports, Inc., 239 F.Supp.2d 121,
122 (D. Mass.2002), As in many civil rights and employment
cases, Plaintiff's complaint alleges important statutory
issues and rights of public significance, such as those in
the case of Mulvihill v. Spalding, which was cited
by Plaintiff. This Court has considered the
Mulvihill proposition which states that “where
the issues are fairly disputed, it is important that the
plaintiff not be ‘unduly intimidated' by the threat
of imposition of costs in a case raising important issues
such as these.” Kuzman v. Hannaford, 2005 WL
1981498 at *2 (D.Me 2005), quoting Mulvihill. The
Clerk assumes the Plaintiff's claims had merit or were
“fairly disputed” even where the case failed to
survive summary judgment; but this Court has also said that
“not every Title VII plaintiff, due to the statutory
invocation, is absolved from the presumptive working of Rule
54(d).” Kuzman at *2. The losing party's
good faith in pursuing an action is an insufficient basis to
refuse the assessment of costs against her, since “[t]o
hold otherwise would frustrate the rule.” Teague v.
Bakker, 35 F.3d 978, 996 (4th Cir. 1994).
the presumption of Rule 54(d) cuts against Plaintiff's
equitable policy argument where the proposed tax in this case
is low. The Clerk believes that similarly-situated plaintiffs
would not be chilled or intimidated to bring a lawsuit that
might vindicate important civil rights where the proposed
imposition of costs totals only $1, 418.49.
though the First Circuit acknowledged the indigency exception
in Papas v. Hanlon and gave district courts
discretion to “take into account the limited financial
resources of a plaintiff, ” the inquiry requires more.
Papas, 849 F.2d at 704. “[T]he district court
must make a threshold factual finding that the losing party
is incapable of paying the court-imposed costs at this
time or in the future (emphasis added). The burden is on
the losing party to provide the district court with enough
documentation to support such a finding. The documentation
should include evidence in the form of an affidavit or other
documentary evidence of both income and assets, as well as a
schedule of expenses.” Rivera v. City of
Chicago, 469 F.3d 631, 636 (7th Cir.2006).
has asserted that she is unable to pay the costs in this
case, stating that she provides financial support for two
adult children. She has not, however, provided full
information that shows her income and cashflow or her
sons', only some of their expenses including credit card
bills. Affidavit, ECF No. 27-1, p 2. With the
limited information provided by the Plaintiff, the Clerk is
unable to determine the Plaintiff's household cash flow
beyond the bald assertion that she would be
“financially devastate(d)” if she had to pay
costs. Without a complete picture of the Plaintiff's
present financial situation or her future earning potential
and given the narrowness of the indigency exception, the
Clerk finds that the Plaintiff has failed to meet her burden
to demonstrate her eligibility for Rule 54(d)'s narrow
indigency exception even if Kennebec County, et al. have
“vastly more resources” than Plaintiff.
Response, ECF No. 27, p. 3.
Lack of Standing
alleges that Defendants have no standing to seek
reimbursement of costs because they have not paid the
expenses themselves but have been indemnified by the Maine
County Commissioner Association's Self-Funded Risk
Management Pool. Id. at p 3. Plaintiff submitted a
copy of the Member Coverage document for the Self-Funded Risk
Management Pool. Response, ECF No. 27-2.
Plaintiff's assertion is countered by Defendants'
assertion that they incurred the expenses claimed
necessarily. Where there has been no evidence submitted that
someone other than the prevailing party has borne the
expenses claimed herein, the Clerk will not go against the
presumption to tax in favor of the prevailing party and will
assume that the prevailing party has not claim these same
expenses against their insurance.
Fees for Deposition Transcripts
have claimed a total of $1, 306.99 for transcripts obtained
in this case. Transcript fees are taxable to the extent that
they were “necessarily obtained for use in the
case.” 28 U.S.C. § 1920(2). In its supporting
affidavit, Defendants have explained that the depositions
were necessary because they were either relied upon by the
Court in its order of March 19, 2019 (Order, ECF No.
23) or by both parties. Bill of Cost, ECF No. 26, p.
2. The Clerk's review of the Court's Order and of
docket in this case indicates that each of the transcripts
were necessarily obtained in that they were either used by
the Court or were relied upon for the parties' motion
each of the transcripts appear to have been necessarily
obtained, some of the associated costs for the transcripts
will not be taxed. Plaintiff has pointed out that each of the
six transcripts includes an index. This Court has held that
charges for word indices are not ordered because such items
are considered “items for the convenience of
counsel.” Burton v. R.J. Reynolds Tobacco,
Co., 395 F.Supp.2d 1065 at 1080 (D. Kan. 2005);
Keweenaw Bay Indian Community v. Rising, 2005 WL
3535124 at *2 (W.D. Mich. 2005); and Charles v.
Sanchez, 2015 WL 11439074 at *12 (W.D. Tex. 2015).
Rather than deny the transcript costs in total, the Clerk
adopts Plaintiff's estimation that the indices ...