based upon historical use whereby courts in equity allowed costs as a matter of discretion and not as a matter of right, the latter approach sounding in law. See 10 Wright & Miller, Federal Practice and Procedure, § 2668 at 141-142 n.34; 6 Moore's Federal Practice, P 54.70(3) at 1305 n.2.
A trial court's determination concerning the taxation and allocation of costs will only be disturbed when an abuse of discretion is found. Morgan v. Kight, 294 F. Supp. 40, 41 (E.D.N.C.1968). Based on the critical notions of judicial practicality and fairness, costs must be assessed on a case-by-case basis, depending on the facts and equities of each case. Hansen v. Bradley, 114 F. Supp. 382, 384 (D.Md.1953).
Although the types of costs allowable under Rule 54(d) are defined in 28 U.S.C. § 1920, that list is not intended to be all-inclusive and is expandable unless a statute or rule dictates otherwise. Gotz v. Universal Products Co., 3 F.R.D. 153, 155 (D.Del.1943). The test for expansion is whether the costs ordered or approved by the trial court are entirely essential for the proper consideration and determination of the case. Prashker v. Beech Aircraft Corporation, 24 F.R.D. 305, 314 (D.Del.1959). As to the issue of the proper allocation of court-ordered or -approved costs against non-prevailing parties, costs have been apportioned among both plaintiffs and defendants, K-S-H Plastics, Inc. v. Carolite, Inc., 408 F.2d 54, 60 (9th Cir. 1969), and solely among the defendants in various proportionate amounts, Warner v. Florida Bank & Trust Co. at West Palm Beach, 160 F.2d 766, 772 (5th Cir. 1947).
Ultimately, the burden of challenging whether the taxation or allocation of costs is placed upon the non-prevailing party, which party must show why the costs should not be assessed, Lichter Foundation, Inc. v. Welch, 269 F.2d 142, 146 (6th Cir. 1959).
In light of these fundamental doctrines, defendant Local 542 has referred this Court to several decisions which bear upon the issues in the present case. Those decisions have held defendants liable for costs even though they were only injunctively liable under the theory of vicarious responsibility. Those courts have held that defendants primarily liable or responsible for active acts of discrimination should bear the costs along with other defendants who were only passively responsible. See, e.g., Chastang v. Flynn & Emrich Co., 541 F.2d 1040, 1044-1045 (4th Cir. 1976) (court held that a defendant trustee of discriminatory trust, although a passive defendant by not actively discriminating, was not "a mere volunteer" and would be held injunctively liable and made to bear its "share of the costs" of the litigation but would not be assessed any damages); Sagers v. Yellow Freight System, Inc., 388 F. Supp. 528, 532-533, 535 (N.D.Ga.1974) (although three union defendants were only passively responsible for discrimination, they were assessed one-half, equally apportioned, of attorney's fees and costs, with employer assessed the other one-half share since the employer was the primary responsible party; court held that this allocation scheme equitably apportioned responsibility for discrimination among the various liable defendants); U. S. v. Masonry Cont. Ass'n of Memphis, Inc., 497 F.2d 871, 878 (6th Cir. 1974) (costs assessed against all defendants including union and contractor-employers who were properly joined, even though court overruled in part lower court's ruling that all employers injunctively liable; backpay only to be paid by union and some employers); Hairston v. McLean Trucking Company, 62 F.R.D. 642, 673-676 (M.D.N.C.1974) (union as passive participant in discrimination only assessed one-third of costs and no damages, while two discriminating employers who were primarily responsible parties to pay two-thirds of costs and backpay; reasons for assessing costs against union was to serve as a penalty for discriminating and to promote purposes of Civil Rights Act of 1964 by encouraging those with the power to stop discrimination to use their positions). See also Guerra v. Manchester Terminal Corp., 5 F.E.P. Cases 714, 715 (S.D.Texas 1973) (costs awarded equally among two defendant unions and employer along with backpay).
The Court is careful to note that the above cases are distinguishable from the instant action in two respects. First, in each of the above cases, the courts found that the defendants who were passively discriminatory nevertheless were aware in varying degrees of the discriminatory acts of the primarily responsible defendants. This might have prompted some courts to adopt the position of the Hairston court that costs would be assessed to promote the purposes of the civil rights statutes of encouraging those with power to stop discriminatory acts. In the instant case, the finding of liability was that the contractors' associations and the contractor-employers were not aware of the discriminatory entrance and referral practices of the Local's hiring hall, or even that they should have been aware of such discriminatory acts. Rather, Judge Higginbotham held that:
Yet I find that the plaintiffs have failed to prove on a preponderance of the evidence that the associations or contractors viewed simply as a class were actually aware of the union discrimination affecting the employment of minority persons throughout the operating engineer industry in Local 542's jurisdiction. Such knowledge with actual participation in the hiring hall system would of course itself constitute intentional discrimination. I also find that not all contractors and associations may be said as a class to have had reasonable notice of the union's discrimination in view of the great number of contractors and the varying size and intensity of their work. Nevertheless, I find that the contractors and associations are injunctively liable to the plaintiff class under § 1981 as a result of their contractual relationship to and use of a hiring hall system which in practice effectuated intentional discrimination, whether or not the employers and associations knew or should have known.
469 F. Supp. at 401. However, this Court finds that the degree of responsibility or the degree of passivity is not an issue totally precluding those passive defendants from being assessed any injunctive-related costs but, rather, goes to the further question of what percentage of those costs they should bear in light of the finding of liability to date.
At present, the finding of collective injunctive liability carries with it a finding of shared responsibility not only for certain aspects of that injunction including reporting requirements and hour-and-wage goal requirements, but to collectively bear the costs that are necessitated by that same injunctive mandate. Basic fairness demands collective assessment. Again, notions of equity do come into play when a determination must be made as to what portion of the costs should be shared among the various parties. It is only that issue that goes to the degree of responsibility under the notions of primary and passive liability under a theory of vicarious responsibility. Fairness would be abrogated if the full share of injunctive-related costs were assessed against the primary responsible party, while at the same time the full share of the injunctive liability is not.
Intertwined with these critical notions is another distinguishing factor this case bears from the cases cited by Local 542 in its memorandum of law that factor being that the costs assessed in each case concerned costs the plaintiffs had incurred during the course of the litigation and were not costs directly related to the implementation of injunctive relief. The important distinguishing point of this factor is that, while payment of plaintiffs' litigation costs would help to make the plaintiffs whole again and encourage plaintiffs in general to file discrimination actions, see New York Gaslight Club, Inc., et al. v. Carey, 447 U.S. 54, 60 - 62, 100 S. Ct. 2024, 2029-2030, 64 L. Ed. 2d 723 (1980), payment of injunctive costs serves another purpose as previously stated, that being to effectuate the injunction by defraying costs that are necessarily built into that injunction and which must be paid in order to successfully further the injunctive relief ordered. In the present case, for example, the costs of notices to class members is essential in order to have notices sent to both plaintiff- and defendant-class members to, in all fairness, bind them to the injunctive relief ordered. Without notice, they cannot be expected to be bound by the injunctive requirements placed upon them as members of the defendant-class or to pay those costs associated with the injunction. See In re Nissan Motor Corp. Antitrust Litigation, 552 F.2d 1088, 1102-1106 (5th Cir. 1977). This type of cost does not further the purposes set forth in New York Gaslight, supra, but, rather, goes to the heart of the action the injunctive relief requested.
In support of their position that defendants held injunctively liable under a theory of vicarious responsibility cannot be assessed costs, named party defendants Glasgow, Inc., and the three defendant contractors' associations refer the Court to the case of Rios v. Enterprise Ass'n Steam-Fitters Local 638 of U. A., 400 F. Supp. 988 (S.D.N.Y.1975). There, the court held that the primary force behind the discrimination against minority workers was Local 638, but held the Local, the Mechanical Contractors Association ("MCA") and the Steamfitters' Joint Apprenticeship Committee ("SJAC") injunctively liable. As to the liability of MCA, the Rios court held:
MCA. Plaintiffs seek to have MCA share in the burden of providing back pay. MCA, a trade association of certain contractors in the New York area, acts only in collective bargaining negotiations between its members and Local 638. MCA does not employ steamfitters; rather, employment is done by its members. While MCA was found to have been properly made a party defendant in the Rios action (360 F. Supp. (979) at 994-95), that finding did not imply that MCA was "responsible ipso facto for all the employment practices here found unlawfully discriminatory or ... liable in damages to the plaintiffs in Rios. Plaintiffs have shown no specific instances of MCA discrimination. Rather, plaintiffs have demonstrated only that there has been a lack of nonwhite employment in the industry generally and that, in consequence, the industry's referral practices must be changed." Id. at 995-96.