The opinion of the court was delivered by: MCLAUGHLIN
This was an action under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. The Plaintiff, Robert Krouse, alleged that his employer, the Defendant, American Sterilizer Company ("AMSCO"), improperly failed to accommodate him on the basis of a disability and improperly changed his work assignment. See Krouse v. American Sterilizer Co., 872 F. Supp. 203, 204 (W.D. Pa. 1994). On August 8, 1995, this Court dismissed this action because of the failure of Krouse and his counsel to prosecute it.
AMSCO then asked that the Clerk of this Court tax costs in its favor and against Krouse in the amount of $ 10,637.85. The Clerk indicated on October 12, 1995 that he would tax only $ 1,379.10 and disallowed the remainder of AMSCO's request. AMSCO subsequently decreased its request to $ 7,309.95 and moved for review by this Court of the Clerk's determination. For the reasons that follow, this Court will enter judgment in AMSCO's favor for $ 2,504.30.
Pursuant to Rule 54(d) of the Federal Rules of Civil Procedure a party prevailing in an action may recover its costs related to the litigation as provided in 28 U.S.C. § 1920, by another statute, or by contract. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445, 96 L. Ed. 2d 385, 107 S. Ct. 2494 (1987). AMSCO is the prevailing party in this litigation.
It has identified three categories in which it believes that it is entitled to an award of costs: deposition expenses pursuant to § 1920(2); copying charges under § 1920(4); and fees for expert witnesses pursuant to § 1920(3).
Section 1920(2) allows taxation of "Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case." AMSCO seeks to recover $ 3,250.65, which is the cost of the stenographer's attendance at the depositions of Krouse, Douglas Bird, Dr. Joseph Carvelli, Dr. Daniel Young, Dr. George Bohatiuk, and Dr. Joseph Ferris; the original transcription of these depositions; and one additional copy of each transcript. The Clerk awarded only $ 1,259.10.
"Depositions used in support of a motion for summary judgment are necessarily obtained for use in a case." Fitchett v. Strohmann Bakeries, Inc., 1996 U.S. Dist. LEXIS 1168, Civ. A. No. 95-284, 1996 WL 47977, at *4 (E.D. Pa. Feb. 5, 1996)(citing Hudson v. Nabisco Brands, Inc., 758 F.2d 1237, 1243 (7th Cir. 1985) and Jeffries v. Georgia Residential Finance Authority, 90 F.R.D. 62, 63 (N.D. Ga. 1981), cert. denied, 459 U.S. 971, 74 L. Ed. 2d 283, 103 S. Ct. 302 (1982)). One copy of each transcript for which AMSCO seeks to recover costs was included in the appendix to AMSCO's motion for summary judgment. Had Krouse and his attorney responded to that motion, this Court might have needed to refer to the transcripts in disposing of the motion. The motion could well have been granted on the merits. See Fed. R. Civ. P. 11(b) (certification of counsel that motion comports with requirements of Rule is inherent in signed motion).
Therefore, the amount requested for attendance fees and the costs of the original transcripts are taxable. However, the costs of the additional copy of each transcript will not be taxed. Because this action proceeded no further than summary judgment, additional copies of the transcripts were not necessary or useful to this Court or any other finder of fact.
The judgment will reflect the following amounts:
Deposition of Robert V. Krouse (v.I):
attendance: $ 90.00
first copy: 451.20
TOTAL $ 541.20
Deposition of Robert V. Krouse (v. II):
attendance: $ 41.90
first copy: 191.40
TOTAL $ 233.30
Deposition of Douglas Bird:
attendance: $ 50.25
first copy: 266.20
TOTAL $ 316.45
Deposition of Dr. Joseph Carvelli:
attendance: $ 58.70
first copy: 314.60
TOTAL $ 373.30
Deposition of Dr. Daniel Young:
attendance: $ 117.25
first copy: 391.60
TOTAL $ 508.85
Deposition of Dr. George Bohatiuk:
attendance: $ 33.50
first copy: 68.20
TOTAL $ 101.70
Deposition of Dr. Joseph Ferris:
attendance: $ 58.70
first copy: 250.80
TOTAL $ 309.50
GRAND TOTAL $ 32,384.30
Section 1920(4) allows taxation of "Fees for exemplification and copies of papers necessarily obtained for use in the case." AMSCO seeks to recover $ 834.30 in copying costs. These costs include $ 655.60 for copies of AMSCO's pleadings and motions filed with this Court, served on Krouse, and retained by AMSCO;
$ 3.00 for copies of discovery documents served by AMSCO on Krouse; and $ 175.70 for copies of original documents produced by Krouse during discovery. AMSCO seeks to tax these copies at the rate of $ 0.10 per page. The Clerk disallowed this item in its entirety. He determined that it represented "normal office expenses and the costs of litigating." Clerk's Letter to Counsel, 10/12/95, at 2.
This Court upholds the Clerk's determination with regard to AMSCO's pleadings and motions. Although the law on taxation for copies of exhibits for summary judgment is not well established, compare Garonzik v. Whitman Diner, 910 F. Supp. 167, 172 (D.N.J. 1995) (applying District of New Jersey's Rule 23G.9, which allows taxation only when opposing counsel has requested that original not be used and copy is actually introduced into evidence or "necessarily attached" to document filed in support of dispositive motion) with Fitchett, 1996 U.S. Dist. LEXIS 1168, 1996 WL 47977, at *6 ("Costs incurred compiling exhibits in support of a motion for summary judgment are generally taxable."), this Court would be inclined to allow taxation of the costs of these copies for the same reasons stated supra with regard to deposition expenses. However, there appears to be no authority in this Circuit to support AMSCO's claim for the cost of copying its pleadings or for the cost of any copies retained by AMSCO. But cf. State of Illinois v. Sangamo Construction Co., 657 F.2d 855, 867 (7th Cir. 1981) (allowing taxation of costs of copying pleadings). The Clerk ...