B. Copying charges
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 is correct that these copying costs are part of the normal overhead of litigation and are not recoverable. In its bill of costs, AMSCO has not distinguished between the costs of copying the exhibits and the costs of copying its pleadings. Therefore, no amount will be taxed for this item.
For similar reasons, this Court will also uphold the Clerk's determination with regard to AMSCO's copying of its own discovery documents and of documents produced by Krouse during discovery. AMSCO has not demonstrated how these materials were necessary to the case given the posture in which it terminated.
C. Fees for expert witnesses
Section 1920(3) allows taxation of "Fees and disbursements for printing and witnesses." AMSCO seeks to recover $ 3,225.00 in fees paid to three expert witnesses. The Clerk determined that AMSCO was entitled to only $ 120.00. It calculated this amount at one day's fees for each witness at the rate of $ 40.00 per day.
The Clerk was correct. In Crawford Fitting, the Court rejected the suggestion that a district court had inherent discretion under Rule 54(d) to award witness fees to a prevailing party in excess of the amount provided by § 1920. 482 U.S. at 441-42. Section 1920(3) provides for the recovery of only those witness fees allowed by 28 U.S.C. § 1821(b). Id. at 440-41. Section 1821(b) now provides for witness fees of $ 40 per day. Thus, the $ 120.00 figure for three witness-days is appropriate.
AMSCO recognizes this limitation but suggests that the ordinary limit of § 1821 is statutorily modified in this case by 42 U.S.C. § 1988(c):
In awarding an attorney's fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney's fee.
In paragraph 28 of his Complaint, Krouse cited to 42 U.S.C. § 1981a as authority for this Court to grant him the relief he sought. Thus, § 1988(c) gives this Court some authority to award expert witness fees in litigation of this nature. See also 42 U.S.C. § 12117(a) (powers, remedies, and procedures of, inter alia, 42 U.S.C. § 2000e-5 available in actions under ADA); id. at § 2000e-5(k) ("In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee (including expert fees) as part of the costs . . . .").
However, for two reasons, these statutes do not authorize the recovery that AMSCO seeks. First, AMSCO is not entitled to these fees as a matter of substantive law. Both § 1988(c) and § 2000e-5(k) authorize awards of expert fees as part of the attorney's fee. In an employment discrimination action, such fees "cannot be awarded against a plaintiff absent a finding that the suit was frivolous, unreasonable, or without foundation." Commonwealth of Pennsylvania v. Flaherty, 40 F.3d 57, 60 (3d Cir. 1994). AMSCO is, of course, a prevailing defendant seeking to recover fees from a plaintiff. The record before this Court on this review contains no evidence from which to draw the necessary conclusion.
Second, AMSCO has not properly invoked this Court's authority to award expert witness fees. In 1993, Rule 54(d) was amended to provide different procedures for a prevailing party's recovery of attorney's fees, where appropriate, than for recovery of other costs. See Advisory Committee Notes to 1993 Amendments of Rule 54 ("Notes"). Under Rule 54(d)(1), judgment for taxable costs other than attorney's fees may still be entered by the clerk, subject to review by the district court. Rule 54(d)(2) requires that a party seeking to recover attorney's fees file a motion directed to the court within 14 days of entry of judgment. Its drafters explained that it was adopted to
establish a procedure for presenting claims for attorney's fees, whether or not denominated as "costs." It applies also to requests for reimbursement of expenses, not taxable as costs, when recoverable under governing law incident to the award of fees. Cf. West Virginia Univ. Hosp. v. Casey, U.S. (1991), holding, prior to the Civil Rights Act of 1991, that expert witness fees were not recoverable under 42 U.S.C. § 1988.